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HomeMy WebLinkAbout15-549 Deklinski ADVICE OF COUNSEL July 28, 2015 Joseph Deklinski 406 North Front Street Wormleysburg, PA 17043 15-549 Dear Mr. Deklinski: This responds to your letters dated May 6, 2015, May 26, 2015, and June 18, 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 an individual who, following retirement from the Commonwealth of Pennsylvania, has provided services to the Governor’s Office of Administration as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1), with regard to engaging in direct contact with the Governor’s Office of Administration or other agencies under the Governor’s jurisdiction as an employee of a consulting firm. 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. On July 11, 2014, you retired from your employment as the Director of the Governor’s Innovation Office within the Governor’s Office of Administration (“OA”). From late July 2014 until February 20, 2015, you returned to work with OA as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”), providing services to OA in the role of Director of the Governor’s Innovation Office. You have submitted a copy of a list of your job duties in your role as Director of the Governor’s Innovation Office, which document is incorporated herein by reference. You state that during your tenure with OA, your duties included working with agencies to redesign business processes, working with employees to create a better understanding of change management and innovation opportunities, and helping with the management of the portfolio of innovation projects of various state agencies. You state that your role in working with state agencies was strictly collaborative in nature and that you had no direct authority with regard to their programs or policies. Deklinski, 15-549 July 28, 2015 Page 2 You have submitted a copy of Executive Order No. 2012-04, which document is incorporated herein by reference. It is noted that Executive Order No. 2012-04 established the Governor’s Innovation Office within OA. See, Executive Order No. 2012-04, at 1. The activities of the Governor’s Innovation Office are directed by a Steering Committee. Id. at 2. The Director of the Governor’s Innovation Office is a member and secretary of the Steering Committee. Id. You have been presented with the opportunity to enter part-time employment with a consulting firm that provides training, strategic planning, and other related services. The aforesaid consulting firm conducts business with the Commonwealth. Based upon the above submitted facts, you pose the following questions: (1) Whether, in the former capacity as the Director of the Governor’s Innovation Office, you would be considered a “public employee” subject to the Ethics Act, and if so, whether the one-year period of applicability of Section 1103(g) of the Ethics Act commenced when you retired from your employment as Director of the Governor’s Innovation Office or when you ceased providing services to OA as an annuitant in the role of Director of the Governor’s Innovation Office; and (2) Whether Section 1103(g) of the Ethics Act would prohibit you from engaging in direct contact with OA only or with all other agencies under the Governor’s jurisdiction as well. 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 Governor’s Innovation Office within OA, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. This conclusion is based upon the submitted facts, 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 retiring from the Commonwealth on July 11, 2014, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. It is clear that when an individual who has retired from Commonwealth employment returns to Commonwealth service as an annuitant to perform services falling within the Ethics Act’s definition of “public employee” (see, 65 Pa.C.S. § 1102), the individual becomes a “public employee” subject to the Ethics Act. See, Graves, Opinion 00-009; McGlathery, Opinion 00-004. Accordingly, when you commenced providing services to OA as an annuitant in the role of Director of the Governor’s Innovation Office in late July 2014, you again became a “public employee” subject to the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Graves, supra; McGlathery, supra. Consequently, when you ceased Deklinski, 15-549 July 28, 2015 Page 3 providing such services to OA as an annuitant on February 20, 2015, you again 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. "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. Deklinski, 15-549 July 28, 2015 Page 4 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. Under the facts that you have submitted, when you ceased providing services to OA in your annuitant position on February 20, 2015, you again became a “former public employee” subject to Section 1103(g) of the Ethics Act, and the one-year period of applicability of Section 1103(g) began anew. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service, hereinafter collectively referred to as your “former governmental body,” consists of OA in its entirety, including but not limited to the Governor’s Innovation Office, and the Steering Committee that directs the activities of the Governor’s Innovation Office pursuant to Executive Order No. 2012-04. Therefore, until the expiration of a full one-year period following termination of your service as an annuitant with OA on February 20, 2015, or until you would resume providing services to OA under the 95-day Annuitant Program in a position falling within the Ethics Act’s definition of the term “public employee,” whichever would come first, 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 accepting employment with a consulting firm that conducts business with the Commonwealth. However, when Section 1103(g) of the Ethics Act would be applicable to you, Section 1103(g) would prohibit you from engaging in any activity(ies) that would involve prohibited representation before your former governmental body as delineated above. Deklinski, 15-549 July 28, 2015 Page 5 You are further advised that Section 1103(g) of the Ethics Act would prohibit you from having direct contact with OA to the extent such would involve prohibited representation before your former governmental body as set forth above. However, Section 1103(g) of the Ethics Act would not prohibit you from having direct contact with agency(ies) not included within your former governmental body as delineated above. 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 Governor’s Innovation Office within the Governor’s Office of Administration (“OA”), 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 retiring from the Commonwealth on July 11, 2014, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. In late July 2014, when you commenced providing services to OA as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”) in the role of Director of the Governor’s Innovation Office, you again became a “public employee” subject to the Ethics Act. When you ceased providing such services to OA as an annuitant on February 20, 2015, you again became a "former public employee" subject to Section 1103(g) of the Ethics Act, and the one- year period of applicability of Section 1103(g) began anew. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service, hereinafter collectively referred to as your “former governmental body,” consists of OA in its entirety, including but not limited to the Governor’s Innovation Office, and the Steering Committee that directs the activities of the Governor’s Innovation Office pursuant to Executive Order No. 2012-04. Until the expiration of a full one-year period following termination of your service as an annuitant with OA on February 20, 2015, or until you would resume providing services to OA under the 95-day Annuitant Program in a position falling within the Ethics Act’s definition of the term “public employee,” whichever would come first, 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. Deklinski, 15-549 July 28, 2015 Page 6 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