HomeMy WebLinkAbout14-503 Bolden
ADVICE OF COUNSEL
February 10, 2014
Elizabeth A. Bolden
1207 Kings Circle
Mechanicsburg, PA 17050
14-503
Dear Ms. Bolden:
This responds to your letters dated November 26, 2013, and December 17,
2013, by which you requested an 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 Assistant to
the Secretary for Program and Policy Initiatives with the Pennsylvania Department of
Education following termination of Commonwealth service.
Facts:
You request an 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.
On December 6, 2013, you separated from your Commonwealth employment as
an Assistant to the Secretary for Program and Policy Initiatives with the Pennsylvania
Department of Education (“Department of Education”). You have submitted copies of a
position description for your former position with the Commonwealth and an
organizational chart for the Department of Education, which documents are
incorporated herein by reference.
You seek guidance as to whether Section 1103(g) of the Ethics Act would
impose prohibitions or restrictions upon you with regard to representing a new employer
before the Department of Education, the Office of the Governor (including the Policy
Office, Office of Legislative Affairs, or the Office of the Chief of Staff), or the Governor’s
Budget Office.
It is administratively noted that as an Assistant to the Secretary for Program and
Policy Initiatives, you reported to the Governor’s Office as well as to the Secretary of
Education. Position Description, at 1. You assisted the Secretary of Education “in the
implementation, management and administration of the Department’s initiatives in
accordance with the Governor’s Office ….” Id., at 1. You oversaw the status of
initiatives and reported to the Secretary and the Governor’s Office. Id., at 1. You
further participated in developing priorities, objectives and recommendations for
improving mandated programs and Department of Education initiatives in conjunction
with the Governor’s Office. Id., at 2.
Bolden, 14-503
February 10, 2014
Page 2
It is further administratively noted that the Governor’s Budget Office is part of the
Office of the Budget, which is an administrative agency within the Governor’s Office.
See, 71 P.S. § 229; 4 Pa. Code 9.1.
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.
In the former capacity as an Assistant to the Secretary for Program and Policy
Initiatives with the Department of Education, 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, which when reviewed on an objective basis, indicates
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 your Commonwealth employment, you
became 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.
"Person."
A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
Bolden, 14-503
February 10, 2014
Page 3
"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.
Bolden, 14-503
February 10, 2014
Page 4
The governmental body with which you are deemed to have been associated
upon termination of your Commonwealth employment, hereinafter collectively referred
to as your “former governmental body,” consists of the Department of Education in its
entirety as well as the Governor’s Office in its entirety (including but not limited to the
Executive Offices (such as the Office of the Chief of Staff), Policy Office, Office of
Legislative Affairs, the Office of Administration, and the Office of the Budget in its
entirety). Cf., Hill, Advice 05-549; Dellicker, Advice 02-514. The Governor’s Office is
included within your former governmental body because, based upon your position
description, you reported to the Governor’s Office as well as to the Secretary of
Education.
Therefore, for the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would apply and restrict “representation”
of a “person”--including but not limited to a new employer--before your former
governmental body as delineated above.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office or employment, or confidential information received by being in
the public position, for a private pecuniary benefit as prohibited by Section 1103(a) of
the Ethics Act. Further, you are advised that 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
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.
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 Governor’s Code of Conduct.
Conclusion:
In the former capacity as an Assistant to the Secretary for Program
and Policy Initiatives with the Pennsylvania Department of Education (“Department of
Education”), 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 your
Commonwealth employment, you became a “former public employee” subject to
Section 1103(g) of the Ethics Act. Under the submitted facts, the governmental body
with which you are deemed to have been associated upon termination of your
Commonwealth employment, hereinafter collectively referred to as your “former
governmental body,” consists of the Department of Education in its entirety as well as
the Governor’s Office in its entirety (including but not limited to the Executive Offices
(such as the Office of the Chief of Staff), Policy Office, Office of Legislative Affairs, the
Office of Administration, and the Office of the Budget in its entirety). For the first year
following termination of your Commonwealth employment, Section 1103(g) of the Ethics
Act would apply and restrict “representation” of a “person”--including but not limited to a
new employer--before your former governmental body as delineated above. The
restrictions as to representation outlined above must be followed. 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.
Bolden, 14-503
February 10, 2014
Page 5
.
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