HomeMy WebLinkAbout14-504 Confidential
ADVICE OF COUNSEL
February 14, 2014
14-504
This responds to your letter dated December 8, 2013, and your submission
received December 23, 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 employed as an A
with Commonwealth Department B with regard to negotiating and accepting an offer of
employment with a business currently under contract with the Commonwealth.
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.
You are currently employed as an A with Commonwealth Department B in
Bureau C within Office D. You have submitted copies of a position description for your
position as an A with Commonwealth Department B, the job classification specifications
for the position of A (job code [number]), and an organizational chart for Commonwealth
Department B, which documents are incorporated herein by reference.
You are interested in potential employment with a corporation named [name of
corporation] (“the Corporation”). The Corporation is in a contractual relationship with
the Commonwealth and provides [types of services] to the Commonwealth.
You state that the positions available with the Corporation support almost all
[type of offices] under Commonwealth Department B. The particular position in which
you are interested would support Office E within Commonwealth Department B.
You seek guidance as to whether the Ethics Act would impose any prohibitions
or restrictions upon you with regard to negotiating and accepting an offer of employment
with the Corporation or another business currently under contract with the
Commonwealth. You pose the following questions:
(1) Whether it would be possible for you to obtain a waiver from the
Pennsylvania State Ethics Commission of any restrictions of the Ethics Act
which would be applicable to you;
(2) How the term “governmental body” would be interpreted and the scope of
such term would be defined as it would relate to your proposed negotiation
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February 14, 2014
Page 2
and acceptance of an offer of employment with a business currently under
contract with the Commonwealth; and
(3) How Sections 1103(a) and 1103(c) of the Ethics Act would apply if, while
serving in your current position with Commonwealth Department B, you
would negotiate for future employment with a business currently under
contract with the Commonwealth.
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.
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.
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
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February 14, 2014
Page 3
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.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from using the authority of public office/employment or confidential
information received by 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, 65 Pa.C.S. §§ 1103(b), (c),
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.
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
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February 14, 2014
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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
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
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February 14, 2014
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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 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 Office
D. 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.
Your specific questions shall now be addressed.
In response to your first specific question, you are advised that the Ethics Act
does not provide for waivers of the applicability of its restrictions, particularly the
restrictions of Sections 1103(a), 1103(c), and 1103(g). The Pennsylvania State Ethics
Commission does not have the authority to grant that which is not authorized by law.
Cf., Whitlock, Opinion 04-015; Ziegler, Opinion 98-001; Long, Opinion 97-010;
Richardson, Opinion 93-006.
With regard to your second specific question, you are advised as follows.
As stated above, 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. Section 1103(g)
of the Ethics Act would not prohibit you from pursuing or accepting employment with the
Corporation or other business(es) currently under contract with the Commonwealth.
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. The submitted facts do not detail the
duties of your proposed position with the Corporation. You are advised that when
Section 1103(g) of the Ethics Act would be applicable, it would appear to be difficult if
not impossible, as a practical matter, for you to perform the duties of the proposed
position with the Corporation without running afoul of Section 1103(g).
As to your third specific question, you are advised as follows.
Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from
using the authority of your public position, or confidential information received by being
in such position, for the private pecuniary benefit of yourself, such as, for example, to
advance an opportunity of employment with a business currently under contract with the
Commonwealth. Pursuant to Section 1103(c) of the Ethics Act, you would be prohibited
from soliciting or accepting anything of monetary value, including a promise of future
employment, based on an understanding that your vote, official action or judgment
would be influenced thereby.
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 F.
Conclusion:
Based upon the submitted facts that: (1) you are currently
employed as an A with Commonwealth Department B in Bureau C within Office D; (2)
you are interested in potential employment with a corporation named [name of
corporation] (“the Corporation”); (3) the Corporation is in a contractual relationship with
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February 14, 2014
Page 6
the Commonwealth and provides [types of services] to the Commonwealth; (4) the
positions available with the Corporation support almost all [type of offices] under
Commonwealth Department B; and (5) the particular position in which you are
interested would support Office E within Commonwealth Department B, you are advised
as follows.
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 Office D. 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 with the Corporation or other business(es) currently under
contract with the Commonwealth. 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.
When Section 1103(g) of the Ethics Act would be applicable, it would appear to be
difficult if not impossible, as a practical matter, for you to perform the duties of the
proposed position with the Corporation without running afoul of Section 1103(g).
Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from
using the authority of your public position, or confidential information received by being
in such position, for the private pecuniary benefit of yourself, such as, for example, to
advance an opportunity of employment with a business currently under contract with the
Commonwealth. Pursuant to Section 1103(c) of the Ethics Act, you would be prohibited
from soliciting or accepting anything of monetary value, including a promise of future
employment, based on an understanding that your vote, official action or judgment
would be influenced thereby.
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,
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February 14, 2014
Page 7
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