HomeMy WebLinkAbout13-556
ADVICE OF COUNSEL
August 6, 2013
13-556
This responds to your letter dated July 1, 2013 (postmarked July 1, 2013, and
received July 8, 2013), by which you requested a confidential advisory from the
Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose restrictions upon an individual who, following
retirement from the Commonwealth of Pennsylvania, has provided services to
Commonwealth Agency A as an annuitant under the 95-day “return to state service”
provision at 71 Pa.C.S. § 5706(A.1), with regard to engaging in interactions with
Commonwealth Agency A and its Bs and employees that would not involve promised or
actual compensation.
Facts:
You request a confidential advisory from the Pennsylvania State Ethics
Commission regarding the post-employment restrictions of the Ethics Act. You have
submitted facts that may be fairly summarized as follows.
You state that you recently retired from your employment as C of Commonwealth
Agency A. Following your retirement from the Commonwealth, you returned to work
with Commonwealth Agency A as an annuitant under the 95-day “return to state
service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”),
providing services to Commonwealth Agency A in the role of C. Your period of service
as an annuitant with Commonwealth Agency A under the 95-day Annuitant Program
was to conclude on [date].
You express your understanding that pursuant to Section 1103(g) of the Ethics
Act, you would be prohibited from engaging in representation before Commonwealth
Agency A for promised or actual compensation for one year following the termination of
your annuitant status.
You seek guidance as to whether Section 1103(g) of the Ethics Act would
impose restrictions upon you with regard to engaging in interactions with
Commonwealth Agency A and its Bs and employees that would not involve promised or
actual compensation. In particular, you ask whether the Ethics Act would restrict you
from discussing with Bs and employees of Commonwealth Agency A: (1) ongoing
projects undertaken by Commonwealth Agency A while you served as C; (2) your
Confidential Advice, 13-556
August 6, 2013
Page 2
recollection of past actions; or (3) your opinion on some future course of action, where
such discussion(s) would not involve promised or actual compensation.
Discussion:
Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65
Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts
that the requester has submitted. In issuing the advisory based upon the facts that the
requester has submitted, the Commission does not engage in an independent
investigation of the facts, nor does it speculate as to facts that have not been submitted.
It is the burden of the requester to truthfully disclose all of the material facts relevant to
the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the
extent the requester has truthfully disclosed all of the material facts.
It is initially noted that this advisory is limited to addressing the specific
question(s) posed under Section 1103(g) of the Ethics Act. There is nothing in the
submitted facts that would suggest the applicability of other restriction(s) of the Ethics
Act to your specific inquiry.
It is clear that when an individual who has retired from Commonwealth
employment returns to Commonwealth service as an annuitant to perform services
falling within the Ethics Act’s definition of “public employee” (see, 65 Pa.C.S. § 1102),
the individual becomes a “public employee” subject to the Ethics Act. See, Graves,
Opinion 00-009; McGlathery, Opinion 00-004.
When you commenced providing services to Commonwealth Agency A as an
annuitant in the role of C, you became a “public employee” subject to the Ethics Act and
the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code
§ 11.1; Graves, supra; McGlathery, supra. Consequently, when you would cease
providing such annuitant services, you would become a "former public employee"
subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public official/public
employee with regard to “representing” a “person” before “the governmental body with
which he has been associated”:
§ 1103. Restricted activities
(g)Former official or employee.--
No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms “represent,” “person,” and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent."
To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
Confidential Advice, 13-556
August 6, 2013
Page 3
"Person."
A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated."
The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public official/public employee himself,
Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur,
Opinion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89-005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public
official/public employee on invoices submitted by his new employer to the former
governmental body, even if the invoices pertain to a contract that existed prior to
termination of service with such governmental body. Shay, Opinion 91-012. However,
if such a pre-existing contract does not involve the unit where a former public employee
worked, the name of the former public employee may appear on routine invoices if
required by the regulations of the agency to which the billing is being submitted.
Abrams/Webster, Opinion 95-011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103(g) only restricts the former public official/public employee with
regard to representation before his former governmental body. The former public
official/public employee is not restricted as to representation before other agencies or
entities. However, the “governmental body with which a public official/public employee
is or has been associated” is not limited to the particular subdivision of the agency or
Confidential Advice, 13-556
August 6, 2013
Page 4
other governmental body where the public official/public employee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, Opinion 90-009-R.
Under the facts that you have submitted, when you would cease providing
services to Commonwealth Agency A in your annuitant position, you would become a
“former public employee” subject to Section 1103(g) of the Ethics Act, and the one-year
period of applicability of Section 1103(g) would commence.
The governmental body with which you would be deemed to have been
associated upon termination of the aforesaid service would be Commonwealth Agency
A in its entirety.
Therefore, until the expiration of a full one-year period following termination of
your service as an annuitant with Commonwealth Agency A, or until you would resume
providing services to Commonwealth Agency A under the 95-day Annuitant Program in
a position falling within the Ethics Act’s definition of “public employee,” whichever would
come first, Section 1103(g) of the Ethics Act would apply and restrict “representation” of
a “person” before Commonwealth Agency A with promised or actual compensation.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised as follows. When Section 1103(g) of the Ethics Act would be applicable to you,
Section 1103(g) would not prohibit you from engaging in interaction(s) with
Commonwealth Agency A and its Bs and employees, including discussing with Bs and
employees of Commonwealth Agency A: (1) ongoing projects undertaken by
Commonwealth Agency A while you served as C; (2) your recollection of past actions;
or (3) your opinion on some future course of action, subject to the condition that you
would engage in such interaction(s)/discussion(s) without promised or actual
compensation.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation, or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion:
When you commenced providing services to Commonwealth
Agency A as an annuitant under the 95-day “return to state service” provision at 71
Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”) in the role of C, you became a
“public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”),
65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et seq. When you would cease providing services to Commonwealth
Agency A in your annuitant position, you would become a "former public employee"
subject to Section 1103(g) of the Ethics Act. The governmental body with which you
would be deemed to have been associated upon termination of the aforesaid service
would be Commonwealth Agency A in its entirety. Until the expiration of a full one-year
period following termination of your service as an annuitant with Commonwealth Agency
A, or until you would resume providing services to Commonwealth Agency A under the
95-day Annuitant Program in a position falling within the Ethics Act’s definition of “public
employee,” whichever would come first, Section 1103(g) of the Ethics Act would apply
and restrict “representation” of a “person” before Commonwealth Agency A with
promised or actual compensation. The restrictions as to representation outlined above
must be followed. When Section 1103(g) of the Ethics Act would be applicable to you,
Section 1103(g) would not prohibit you from engaging in interaction(s) with
Commonwealth Agency A and its Bs and employees, including discussing with Bs and
employees of Commonwealth Agency A: (1) ongoing projects undertaken by
Commonwealth Agency A while you served as C; (2) your recollection of past actions;
or (3) your opinion on some future course of action, subject to the condition that you
Confidential Advice, 13-556
August 6, 2013
Page 5
would engage in such interaction(s)/discussion(s) without promised or actual
compensation.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) of the Ethics Act only. There is nothing in the submitted
facts that would suggest the applicability of other restriction(s) of the Ethics Act to your
specific inquiry. The propriety of the proposed conduct has only been addressed under
the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in
any enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel