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HomeMy WebLinkAbout13-583 Confidential ADVICE OF COUNSEL December 5, 2013 13-583 This responds to your letter of November 1, 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 employment of an A following termination of employment with Commonwealth Department B. 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 are currently employed as an A with Unit C within Commonwealth Department B. You have submitted copies of your official Commonwealth position description and the job classification specifications for the position of A (job code [number]), both of which documents are incorporated herein by reference. You state that the A oversees the operations of state-run and contracted Ds which provide E for Fs. The contracted sites provide specialized services such as [types of services]. The A supervises various staff members including those who audit the contracted sites to ensure compliance with the policy and procedures of Commonwealth Department B, federal, state and local laws, ordinances, G standards, and H regulations. You state that the A has the ability to recommend Is based on [type of reports] submitted by the staff members who audit the contracted sites. Such recommendations are reviewed by J staff, and if the recommendations are supported by the K of Unit C, a final determination is made by [an individual serving in a different position]. You state that the A also participates in but does not make the final determination as to the establishment of new contracted sites or the closing of underperforming sites. You are considering applying for a position as an L for a company (the “Company”) that has a contract with Commonwealth Department B. The L position would involve oversight of a program operated by the Company which involves Ms with the Company as well as oversight of N-run programs. You would be primarily responsible for overseeing [number] Os and the programs being offered as well as contracts with [number] N Ps. You state that at no time would you be expected to participate in contract negotiations with the state and that your salary would not be contingent upon the Q. Confidential Advice, 13-583 December 5, 2013 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would impose any restrictions upon you with regard to pursuing the position of L for the Company. Discussion: It is initially noted that 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 further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by Confidential Advice, 13-583 December 5, 2013 Page 3 holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. As an A for Commonwealth Department B, you would be considered 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. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of employment with Commonwealth Department B, 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, 13-583 December 5, 2013 Page 4 "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 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. Confidential Advice, 13-583 December 5, 2013 Page 5 The governmental body with which you would be deemed to have been associated upon termination of your employment with Commonwealth Department B would be Commonwealth Department B in its entirety, including but not limited to Unit C. Therefore, for the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Department B. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from pursuing or accepting employment as an L for the Company. However, during the first year following termination of your employment as an A for Commonwealth Department B, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) that would involve prohibited representation before Commonwealth Department B as set forth above. With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are generally advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your prospectively entering into a business/employment relationship with the Company subject to the conditions that you: (1) did not use the authority of your public position in matter(s) pertaining to the Company when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with the Company or would otherwise receive a private pecuniary benefit relating to the Company; and (2) did not otherwise use the authority of your public position or confidential information received as a result of being in your public position in furtherance of securing a business/employment arrangement with the Company or other private pecuniary benefit relating to the Company. Cf., Desmond, Opinion 08-004. 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. Specifically not addressed herein is the applicability of the R. Conclusion: As an A for Commonwealth Department B, you would be considered 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. Upon termination of employment with Commonwealth Department B, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The former governmental body would be Commonwealth Department B in its entirety, including but not limited to Unit C. For the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Department B. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from pursuing or accepting employment as an L for a company (the “Company”) that has a contract with Commonwealth Department B. However, during the first year following termination of your employment as an A for Commonwealth Department B, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) that would involve prohibited representation before Commonwealth Department B as set forth above. With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are generally advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your prospectively entering into a business/employment relationship with the Company subject to the conditions that you: (1) did not use the authority of your public position in matter(s) pertaining to the Company when you had an actual or reasonable expectation Confidential Advice, 13-583 December 5, 2013 Page 6 that you would enter into a business/employment arrangement with the Company or would otherwise receive a private pecuniary benefit relating to the Company; and (2) did not otherwise use the authority of your public position or confidential information received as a result of being in your public position in furtherance of securing a business/employment arrangement with the Company or other private pecuniary benefit relating to the Company. Lastly, 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