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HomeMy WebLinkAbout14-532 Rosenstein ADVICE OF COUNSEL July 16, 2014 Mark J. Rosenstein Gmerek Government Relations, Inc. 212 Locust Street Suite 300 Harrisburg, PA 17101 14-532 Dear Mr. Rosenstein: This responds to your letters dated May 16, 2014, and May 21, 2014, 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 a Director of the Office of Legislative Affairs within the Pennsylvania Department of Public Welfare, with a job title of Legislative Liaison 3, following termination of Commonwealth employment. 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 April 30, 2014, your employment as the Director of the Office of Legislative Affairs within the Pennsylvania Department of Public Welfare (“Department of Public Welfare”) ended. You have submitted a copy of your official Commonwealth position description (“Position Description”), which document is incorporated herein by reference. It is noted that the Position Description lists your job title as Legislative Liaison 3. A copy of the job classification specifications for the position of Legislative Liaison 3 (job code 07243) has been obtained and is also incorporated herein by reference. In your former Commonwealth position, you reported to the Secretary of Public Welfare and the Secretary and Deputy Secretary of the Governor’s Office of Legislative Affairs. See, Position Description, at 1. You worked with the Secretary of Public Welfare and the Governor’s Office, including but not limited to the Governor’s Office of Legislative Affairs, in managing the Governor’s legislative agenda that focused on those most in need. Your job responsibilities included working closely with certain Offices within the Department of Public Welfare in analyzing and tracking legislation, preparing hearing testimony, creating and implementing legislative strategy, and advocating the Governor’s agenda to the Members of the General Assembly and their staff. You also managed the Office of Legislative Affairs within the Department of Public Welfare by overseeing a deputy director and six legislative liaisons to ensure that constituent casework was performed accurately and in a timely fashion. Rosenstein, 14-532 July 16, 2014 Page 2 Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to lobbying any particular entity(ies). 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 the Director of the Office of Legislative Affairs within the Department of Public Welfare, with a job title of Legislative Liaison 3, 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 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. Rosenstein, 14-532 July 16, 2014 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 other governmental body where the public official/public employee had influence or control Rosenstein, 14-532 July 16, 2014 Page 4 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 Commonwealth employment, hereinafter collectively referred to as your “former governmental body,” consists of the Department of Public Welfare in its entirety as well as the Governor’s Office in its entirety, including but not limited to the Governor’s Office of Legislative Affairs. Cf., Bolden, Advice 14-503. The Governor’s Office is included within your former governmental body because, based upon your position description, you reported to the Secretary and Deputy Secretary of the Governor’s Office of Legislative Affairs as well as to the Secretary of Public Welfare. 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” before your former governmental body as delineated above. You are advised that during the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from lobbying your former governmental body with promised or actual compensation, as such activity would constitute prohibited representation before your former governmental body. 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 the Director of the Office of Legislative Affairs within the Pennsylvania Department of Public Welfare (“Department of Public Welfare”), with a job title of Legislative Liaison 3, 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 Public Welfare in its entirety as well as the Governor’s Office in its entirety, including but not limited to the Governor’s Office of Legislative Affairs. 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” before your former governmental body as delineated above. The restrictions as to representation outlined above must be followed. During the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from lobbying your former governmental body with promised or actual compensation, as such activity would Rosenstein, 14-532 July 16, 2014 Page 5 constitute prohibited representation before your former governmental body. 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