HomeMy WebLinkAbout15-515 Duke
ADVICE OF COUNSEL
March 10, 2015
Brian M. Duke
201 Bruce Road
Washington Crossing, PA 18977
15-515
Dear Mr. Duke:
This responds to your letter dated February 2, 2015, 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 prohibitions or restrictions upon the former
Secretary of Aging for the Commonwealth of Pennsylvania with regard to submitting a
proposal to the United Way of Greater Philadelphia and Southern New Jersey to serve
as a project consultant for a model named “Aging at Home – A Community Network.”
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You recently completed service as the Secretary of Aging for the Commonwealth
of Pennsylvania. The Secretary of Aging is the head of Pennsylvania’s Department of
Aging (“Department of Aging”). See, 71 P.S. § 66.
You are considering submitting a proposal to the United Way of Greater
Philadelphia and Southern New Jersey (“UWGPSNJ”) to serve as a project consultant
(“Project Consultant”) for a model named “Aging at Home – A Community Network” (the
“Model”). You have submitted a copy of a Request for Proposals for the aforesaid
Project Consultant position, which document is incorporated herein by reference. It is
noted that pursuant to the Request for Proposals, the Project Consultant would have
responsibilities regarding the development and implementation of a sustainability plan
pertaining to the Model. The Request for Proposals provides, in part:
Ongoing responsibilities \[of the Project Consultant\] may
include but are not limited to:
…
Prepare for/participate in external and internal
stakeholder meetings such as the Pennsylvania
Department of Aging, Office of Long-Term Living and
UWGPSNJ Impact strategy Committee ….
Request for Proposals, at 3.
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March 10, 2015
Page 2
You state that the Department of Aging contributed funding toward the Model
which complemented majority funding provided by the United Way in 2011 and that the
Department of Aging has provided no funding toward the Model since that time. You
further state that Deputy Secretary David Gingerich of the Department of Aging has
volunteered to serve on an advisory committee for the Model. You additionally state
that according to Jennifer Barnhart, Director of Health and Basic Needs for UWGPSNJ,
the aforesaid advisory committee has not been convened, and there are no plans to
convene it in the near future.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any prohibitions or restrictions upon you with regard to submitting a proposal to
UWGPSNJ to serve as a Project Consultant for the Model.
It is administratively noted that you were appointed Secretary of Aging in
February 2011. TPM,V121 (December 2013), at 4-31.
HE ENNSYLVANIA ANUAL OLUME
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.
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
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March 10, 2015
Page 3
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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 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 questions presented.
In the former capacity as the Secretary of Aging for the Commonwealth of
Pennsylvania, you would be considered a public official/public employee and an
“executive-level State 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.
Consequently, upon termination of Commonwealth employment, you became a
former public official/public employee and a former executive-level State employee
subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act.
Section 1103(i) restricts former executive-level State employees as follows:
§ 1103. Restricted activities
(i)Former executive-level employee.--
No former
executive-level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this Commonwealth, provided that the
above prohibition shall be invoked only when the recruitment
or inducement is accomplished by a grant or loan of money
or a promise of a grant or loan of money from the
Commonwealth to the business or corporation recruited or
induced to expand.
65 Pa.C.S. § 1103(i).
Section 1103(i) restricts the ability of a former executive-level State employee to
accept employment or otherwise engage in business relationships following termination
of State service, under certain narrow conditions. The restrictions of Section 1103(i)
apply even where the business relationship is indirect, such as where the business in
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March 10, 2015
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question is a client of a new employer, rather than the new employer itself. See,
Confidential Opinion, 94-011. However, Section 1103(i) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for a business subject to the conditions that you did not actively
participate in recruiting such business to Pennsylvania, and that you did not actively
participate in inducing such business to open or expand a plant, facility, or branch in
Pennsylvania, through a grant or loan of money or a promise of a grant or loan of
money from the Commonwealth of Pennsylvania.
Unlike Section 1103(i), Section 1103(g) does not prohibit a former public
official/public employee from accepting a position of employment. However, 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.
"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
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March 10, 2015
Page 5
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.
The governmental body with which you are deemed to have been associated
upon termination of Commonwealth employment, hereinafter collectively referred to as
your “former governmental body,” consists of the Department of Aging in its entirety and
all commissions, committees, councils, and boards on which you served in your official
capacity except for those whose members are not considered public officials subject to
the Ethics Act. Cf., Hafer, Opinion 04-016. The Governor’s Cabinet would be included
in your “former governmental body” to the extent it is an actual body on which you
served. (In that regard, it is noted that the Sunshine Act identifies the Governor’s
Cabinet as an “agency” of the Executive Branch of the government of the
Commonwealth when meeting on official policymaking business. See, 65 Pa.C.S. §
703.)
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 Section 1103(g) of the Ethics Act would not prohibit you
from submitting a proposal to UWGPSNJ to serve as a Project Consultant for the
Model. However, during the first year following termination of your Commonwealth
Duke, 15-515
March 10, 2015
Page 6
employment, Section 1103(g) of the Ethics Act would prohibit you from engaging in any
activity(ies) that would involve prohibited representation before your former
governmental body as set forth above, including but not limited to participating in
meetings with the Department of Aging.
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 UWGPSNJ subject
to the conditions that you: (1) did not use the authority of your public position in
matter(s) pertaining to UWGPSNJ when you had an actual or reasonable expectation
that you would enter into a business/employment arrangement with UWGPSNJ or
would otherwise receive a private pecuniary benefit relating to UWGPSNJ; 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 UWGPSNJ or other private pecuniary benefit
relating to UWGPSNJ. 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 Governor’s Code of Conduct.
Conclusion:
In the former capacity as the Secretary of Aging for the
Commonwealth of Pennsylvania, you would be considered a public official/public
employee and an “executive-level State 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 official/public employee and a
former executive-level State employee subject to the restrictions of Section 1103(g) and
Section 1103(i) of the Ethics Act, 65 Pa.C.S. §§ 1103(g), 1103(i). Under Section 1103(i)
of the Ethics Act, you would not be prohibited from being employed by, receiving
compensation from, assisting, or acting in a representative capacity for a business
subject to the conditions that you did not actively participate in recruiting such business
to Pennsylvania, and that you did not actively participate in inducing such business to
open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of
money or a promise of a grant or loan of money from the Commonwealth of
Pennsylvania.
The governmental body with which you are deemed to have been associated
upon termination of Commonwealth employment, hereinafter collectively referred to as
your “former governmental body,” consists of the Department of Aging in its entirety and
all commissions, committees, councils, and boards on which you served in your official
capacity except for those whose members are not considered public officials subject to
the Ethics Act. Cf., Hafer, Opinion 04-016. The Governor’s Cabinet would be included
in your “former governmental body” to the extent it is an actual body on which you
served. 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.
Based upon the submitted facts that: (1) you are considering submitting a
proposal to the United Way of Greater Philadelphia and Southern New Jersey
(“UWGPSNJ”) to serve as a project consultant (“Project Consultant”) for a model named
“Aging at Home – A Community Network” (the “Model”); (2) pursuant to a Request for
Proposals for the aforesaid Project Consultant position, the Project Consultant would
have responsibilities regarding the development and implementation of a sustainability
Duke, 15-515
March 10, 2015
Page 7
plan pertaining to the Model; (3) the Department of Aging contributed funding toward the
Model which complemented majority funding provided by the United Way in 2011, and
the Department of Aging has provided no funding toward the Model since that time; (4)
Deputy Secretary David Gingerich of the Department of Aging has volunteered to serve
on an advisory committee for the Model; and (5) according to Jennifer Barnhart, Director
of Health and Basic Needs for UWGPSNJ, the aforesaid advisory committee has not
been convened, and there are no plans to convene it in the near future, you are advised
as follows.
Section 1103(g) of the Ethics Act would not prohibit you from submitting a
proposal to UWGPSNJ to serve as a Project Consultant for the Model. However, during
the first year following termination of your Commonwealth employment, Section 1103(g)
of the Ethics Act would prohibit you from engaging in any activity(ies) that would involve
prohibited representation before your former governmental body as set forth above,
including but not limited to participating in meetings with the Department of Aging.
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 UWGPSNJ subject
to the conditions that you: (1) did not use the authority of your public position in
matter(s) pertaining to UWGPSNJ when you had an actual or reasonable expectation
that you would enter into a business/employment arrangement with UWGPSNJ or
would otherwise receive a private pecuniary benefit relating to UWGPSNJ; 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 UWGPSNJ or other private pecuniary benefit
relating to UWGPSNJ. 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