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HomeMy WebLinkAbout15-542 Powers ADVICE OF COUNSEL June 29, 2015 Joseph R. Powers 3713 Woodridge Drive Harrisburg, PA 17110 15-542 Dear Mr. Powers: This responds to your letters received April 30, 2015, and May 20, 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 employment of a Special Assistant 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. In June 2009, you retired from Commonwealth employment. During the last six years of your Commonwealth employment, you served in positions with the Pennsylvania Department of Environmental Protection (“Department of Environmental Protection”). Following your retirement, you taught classes in political science as an adjunct professor at St. Joseph’s University in Philadelphia, Pennsylvania. On January 15, 2015, you were asked if you would be interested in being named to the position of Special Assistant to the Governor. You accepted the position, and you were sworn in as a Special Assistant to the Governor on January 20, 2015. You state that for a variety of reasons, you decided not to move forward with the job, and that you submitted your resignation in a letter dated January 30, 2015. You further state that you received a paycheck for your short time in the Governor’s Office, but you never cashed the paycheck. You note that there is no official position description for your former position as a Special Assistant to the Governor. You state that during your tenure in the aforesaid position, you were tentatively assigned to the following state agencies with which you had the following contact: Powers, 15-542 June 29, 2015 Page 2  Pennsylvania Emergency Management Agency - you visited the agency to discuss a snow emergency and had several phone conversations with the agency’s Director concerning a prospective emergency planning exercise;  Pennsylvania Department of Military and Veterans Affairs - you had two phone conversations with the Adjutant General to discuss a request for federal aid and a planned ceremony;  Pennsylvania Department of Corrections - you had a meeting with the Secretary of Corrections to discuss a prison situation;  Pennsylvania Office of Inspector General - you sat in on a meeting at which the functions of the agency were discussed;  Pennsylvania Office of the State Fire Commissioner - you had two conversations with the State Fire Commissioner to discuss general matters;  Pennsylvania Department of Conservation and Natural Resources - you had a phone conversation with the Secretary of Conservation and Natural Resources to discuss personnel matters;  Department of Environmental Protection - your only contact was to congratulate the Secretary of Environmental Protection on his new position; and  Pennsylvania State Police - you had no contact with anyone at the agency. You state that you were also tentatively to be assigned to work with the Lieutenant Governor, the Pennsylvania Attorney General, the Pennsylvania State Treasurer, and the Pennsylvania Auditor General. You had no contact with the Lieutenant Governor, but you did discuss some matters with his Chief of Staff. You had one phone call with the Pennsylvania Auditor General, with whom you have a personal relationship, to inform him of your plans to leave your position with the Commonwealth. You had no contact with the then-Pennsylvania State Treasurer or the Pennsylvania Attorney General. In the fall of 2015, you will be teaching a course entitled “Pennsylvania Government and Politics” (the “Course”) at St. Joseph’s University. You state that as you have done in the past, you would like to occasionally bring in guest lecturers to speak to the Course class. You state that the guest lecturers receive no compensation. You further state that you receive no compensation from the guest lecturers and that you make no effort to influence their actions or positions. In addition to teaching the Course, during the year following termination of your Commonwealth employment, you might obtain employment with an entity that does business with the Commonwealth. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your Commonwealth employment. In particular, you pose the following questions: (1) Whether and to what extent you would be prohibited from engaging in any professional dealings with the Governor’s Office, such as for example, offering advice to potential clients or associates about matters that could relate to the Governor’s Office; Powers, 15-542 June 29, 2015 Page 3 (2) Whether you would be prohibited from having professional contact with any or all of the state agencies or offices to which you were tentatively assigned; (3) Whether you would be prohibited from having contact with any other state agencies; (4) Whether you would be prohibited from having social contact with members of the Governor’s staff with whom you have had personal relationships or friendships for many years; (5) Whether you would be prohibited from having social contact with friends who are employed with agencies to which you were to be assigned, including the Department of Environmental Protection; and (6) Whether you would be prohibited from inviting any state government officials to speak to the Course class. 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 a Special Assistant to the Governor, 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; Marrazzo, Advice 07-549; Bigley, Advice 95-614. 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). Powers, 15-542 June 29, 2015 Page 4 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. 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. Powers, 15-542 June 29, 2015 Page 5 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. Upon termination of your service as Special Assistant to the Governor, the governmental body with which you are deemed to have been associated--hereinafter collectively referred to as your “former governmental body”--consists of: (1) the Governor’s Office in its entirety, including but not limited to the Executive Offices and the Governor’s Office of Administration; and (2) any boards, commissions, or other governmental bodies that you served as an employee, appointee/member, or designee except for those whose members are not considered public officials subject to the Ethics Act. Cf., Hafer, Opinion 04-016; Confidential Opinion, 01-006; Marrazzo, supra. Your former governmental body does not include governmental bodies/agencies that you were assigned to work with but with which you did not hold a position as an employee, appointee/member, or designee. Confidential Opinion, 01-006. 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. Your specific questions shall now be addressed. Powers, 15-542 June 29, 2015 Page 6 In response to your first, second, and third questions, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with an entity that does business with the Commonwealth. 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. You are further advised that Section 1103(g) of the Ethics Act would prohibit you from engaging in professional dealings with the Governor’s Office. However, Section 1103(g) of the Ethics Act would not prohibit you from offering advice to potential clients or associates about matters that could relate to the Governor’s Office or from having contact with state agency(ies) not included within your former governmental body as delineated above. With regard to your fourth and fifth questions, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from having social contact with officials/employees of governmental bodies not included within your former governmental body as delineated above. Section 1103(g) of the Ethics Act would not prohibit you from having social contact with officials/employees of your former governmental body—including but not limited to members of the Governor’s staff—subject to the condition that in so doing, you would not engage in conduct that would constitute prohibited representation in contravention of Section 1103(g). Cf., Conti, Opinion 07-007. In response to your sixth question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from inviting state government official(s) from your former governmental body to speak to the Course class; however, Section 1103(g) of the Ethics Act would not prohibit you from inviting other state government official(s) to speak to the Course class. 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 the former capacity as a Special Assistant to the Governor, 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 service as Special Assistant to the Powers, 15-542 June 29, 2015 Page 7 Governor, 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. Upon termination of your service as Special Assistant to the Governor, the governmental body with which you are deemed to have been associated--hereinafter collectively referred to as your “former governmental body”--consists of: (1) the Governor’s Office in its entirety, including but not limited to the Executive Offices and the Governor’s Office of Administration; and (2) any boards, commissions, or other governmental bodies that you served as an employee, appointee/member, or designee except for those whose members are not considered public officials subject to the Ethics Act. Your former governmental body does not include governmental bodies/agencies that you were assigned to work with but with which you did not hold a position as an employee, appointee/member, or designee. 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. 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