Loading...
HomeMy WebLinkAbout15-537 Schoch ADVICE OF COUNSEL June 8, 2015 Barry J. Schoch 750 Brentwater Road Camp Hill, PA 17011 15-537 Dear Mr. Schoch: This responds to your undated letter postmarked April 3, 2015, received April 6, 2015, and your submission received April 13, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon a Senior Advisor to the Governor following termination of Commonwealth employment. Facts: You request an advisory from the Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. From January 2011 through January 2015, you served as the Secretary of Transportation for the Commonwealth of Pennsylvania. The Secretary of Transportation is the head of the Pennsylvania Department of Transportation (“PennDOT”). See, 71 P.S. § 66. At the time that you submitted your inquiry, you were serving as a Senior Advisor to the Governor on transportation and infrastructure issues. You stated that in such role, you were still in the employ of PennDOT and that you reported to both Governor Tom Wolf (“Governor Wolf”) and Acting Secretary of Transportation Leslie S. Richards (“Acting Secretary Richards”). You stated that as a Senior Advisor to the Governor, your duties and responsibilities included the following:  Assisting Acting Secretary Richards in all transportation-related matters to help her to understand the responsibilities of the Secretary of Transportation;  Providing an overview and working explanation of Act 89 and the project commitments made along with such legislation; Schoch, 15-537 June 8, 2015 Page 2  Providing consultation and advice on input into the federal transportation bill under discussion in Washington, D.C., and testifying before a committee;  Meeting with new chairs of the House Transportation Committees to familiarize them with Act 89 and industry issues;  Advising Acting Secretary Richards and Governor Wolf of remaining legislative priorities for transportation; and  Meeting with Acting Secretary Richards with regard to certain on-going major projects or policy issues with which you were heavily involved while serving as the Secretary of Transportation. You stated that you intended to leave government service at or near the end of April 2015 and return to your prior employer, a consulting engineering firm named “McCormick Taylor, Inc.” (“McCormick Taylor”). Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to interacting with PennDOT or any other governmental entities following termination of your Commonwealth 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 both your former capacity as Secretary of PennDOT and in your subsequent capacity as a Senior Advisor to the Governor employed by PennDOT, 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. As a former executive-level State employee, you would be subject to the restrictions of Section 1103(i) of the Ethics Act, 65 Pa.C.S. § 1103(i). 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 Schoch, 15-537 June 8, 2015 Page 3 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 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. As a former public official/public employee, you would be subject to the restrictions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). 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 Schoch, 15-537 June 8, 2015 Page 4 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. As a former public official/public employee, the governmental body with which you would be deemed to have been associated, hereinafter collectively referred to as your “former governmental body,” would consist of the Governor’s Office in its entirety, PennDOT in its entirety, and all commissions, committees, councils, and boards on which you served in either of your aforesaid official capacities, except for those bodies whose members are not considered public officials subject to the Ethics Act. Cf., Hafer, Schoch, 15-537 June 8, 2015 Page 5 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.) For each body included in your “former governmental body,” Section 1103(g) would apply for one year following termination of your service with that body. While applicable, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) for your new employer, McCormick Taylor, that would constitute prohibited representation before your former governmental body. Based upon the facts that have been submitted, this Advice has addressed the applicability of Sections 1103(g) and 1103(i) 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 both your former capacity as Secretary of the Pennsylvania Department of Transportation (“PennDOT”) and in your subsequent capacity as a Senior Advisor to the Governor employed by PennDOT, 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. As a former executive-level State employee, you would be subject to the restrictions of Section 1103(i) of the Ethics Act., 65 Pa.C.S. § 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. As a former public official/public employee, you would be subject to the restrictions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g), and the governmental body with which you would be deemed to have been associated, hereinafter collectively referred to as your “former governmental body,” would consist of the Governor’s Office in its entirety, PennDOT in its entirety, and all commissions, committees, councils, and boards on which you served in either of your aforesaid official capacities, except for those bodies whose members are not considered public officials subject to the Ethics Act. 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 each body included in your “former governmental body,” Section 1103(g) would apply for one year following termination of your service with that body. The restrictions as to Schoch, 15-537 June 8, 2015 Page 6 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. 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