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HomeMy WebLinkAbout14-507 Confidential ADVICE OF COUNSEL March 10, 2014 14-507 This responds to your letter dated January 9, 2014 (postmarked January 10, 2014, and received January 16, 2014), 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/B following termination of service with a C D of Governmental Body E of Political Subdivision F. 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, the material portion of which may be fairly summarized as follows. From [date], through [date], you were employed as an A/B for Public Official G, a C D of Governmental Body E. You have submitted a copy of a letter to you dated [date], from Public Official G, in which he offered you the aforesaid position and stated that such position would involve a range of responsibilities, including: [certain responsibilities]. You state that in your position with Public Official G, you took all of your direction from him. You state that Public Official G was involved in every discussion and made all of the decisions about his office. On [date], you began employment with a [type of firm] (“the Firm”). The Firm’s products are sometimes purchased by government agencies and/or partnerships between various parties which may include government agencies. You state that the Firm is not focused on Political Subdivision F or the Commonwealth of Pennsylvania. The Firm has offices in Political Subdivision F and [city, state], and its clients include a myriad of governmental organizations across the country. You state that in advance of your departure, you reached out to Political Subdivision F’s H, and that an I there stated to you that: “[T]he State Ethics Act imposes a one-year limitation on representing others before the former employee’s former governmental body. The relevant section of law provides that no former public employee may represent a person, for promised or actual compensation, before the governmental body with which he has been associated for one year after he or she leaves that body. The term person includes both Confidential Advice, 14-507 March 10, 2014 Page 2 individuals, including the former employee, and business entities, such as a new employer.” January 9, 2014, advisory request letter, at page 2. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to your recent change in employment. You pose the following questions: (1) Whether the above description of the post-employment restrictions of the Ethics Act is correct and comprehensive, and whether there is any additional information you should know and have; (2) Whether your former governmental body would be limited to the office of Public Official G; (3) Whether the Ethics Act would impose restrictions upon you with regard to engaging in activity(ies) with your former governmental body; and (4) Whether there is other advice and guidance that would be of value to you regarding your recent change in employment. 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 A/B for Public Official G, 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 submitted facts, 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 as an A/B for Public Official G, 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). Confidential Advice, 14-507 March 10, 2014 Page 3 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. "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 Confidential Advice, 14-507 March 10, 2014 Page 4 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. The governmental body with which you are deemed to have been associated upon termination of your employment as an A/B for Public Official G, hereinafter also referred to as your “former governmental body,” is Governmental Body E in its entirety, including but not limited to the office of Public Official G. Therefore, for the first year following termination of your public service, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Governmental Body E. Having established the above general principles, your specific questions shall now be considered. Your first and fourth questions are general and have been addressed above to the extent that they can be addressed. With regard to your second question, as noted above, your former governmental body is Governmental Body E in its entirety, including but not limited to the office of Public Official G. In response to your third question, you are advised that during the first year following termination of your employment as an A/B for Public Official G, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) for your new employer, the Firm, that would involve prohibited representation before Governmental Body E as set forth 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. Conclusion: In the former capacity as an A/B for Public Official G, a C D of Governmental Body E of Political Subdivision F, you w ould be considered a “public Confidential Advice, 14-507 March 10, 2014 Page 5 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. U pon termination of employment as an A/B for Public Official G, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. The former governmental body is Governmental Body E in its entirety, including but not limited to the office of Public Official G. For the first year following termination of your public service, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Governmental Body E. The restrictions as to representation outlined above must be followed. During the first year following termination of your employment as an A/B for Public Official G, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) for your new employer, a [type of firm], that would involve prohibited representation before Governmental Body E as set forth above. 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