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Home My WebLink About16-500 Benedetto ADVICE OF COUNSEL January 14, 2016 Linda J. Benedetto Chief Executive Officer LJB Consulting, LLC 900 South Meadow Lane Palmyra, PA 17078 16-500 Dear Ms. Benedetto: This responds to your letter dated November 9, 2015, and your submission received November 23, 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 Pennsylvania Department of Education (“Department of Education”) as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1), with regard to having contact with the Department of Education under a contract with an intermediate unit. 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 October 2010, you retired from your employment as an Education Executive 1 with the Bureau of School Leadership and Teacher Quality within the Department of Education. You subsequently returned to work with the Department of Education for various periods 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 a position which shall hereinafter be referred to as the “Annuitant Position.” Your most recent period of service with the Department of Education under the 95-day Annuitant Program began in 2015 and ended on September 23, 2015. You have submitted a copy of a “Request to Fill Critical Vacancy” that sets forth the duties of the Annuitant Position, which document is incorporated herein by reference. Benedetto, 16-500 January 14, 2016 Page 2 You state that you have a contract (the “Contract”) with Tuscarora Intermediate Unit #11. As part of the Contract, you needed to establish a limited liability company and obtain professional liability insurance, with Tuscarora Intermediate Unit #11 named as an insured entity under your insurance policy. You state that none of your previous work with the Department of Education was related to Tuscarora Intermediate Unit #11. You further state that under the Contract, you will be responsible for new work associated with ensuring that Pennsylvania’s poorest and highest-minority children have access to excellent educators. Based upon the above submitted facts, you seek guidance as to whether Section 1103(g) of the Ethics Act would impose any restrictions upon you with regard to having contact with the Department of Education under the Contract. In particular, you ask whether the one-year period of applicability of Section 1103(g) of the Ethics Act commenced when you retired from your Commonwealth employment in October 2010 or when you ceased providing services to the Department of Education in the Annuitant Position on September 23, 2015. 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. 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. Based upon the submitted facts, the necessary conclusion is that when you commenced providing services to the Department of Education in the Annuitant Position in 2015, you became 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; Graves, supra; McGlathery, supra. Consequently, when you ceased providing such services as an annuitant on September 23, 2015, 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: Benedetto, 16-500 January 14, 2016 Page 3 § 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. 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 Benedetto, 16-500 January 14, 2016 Page 4 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 the Department of Education as an annuitant on September 23, 2015, you 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) commenced. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is the Department of Education in its entirety. Therefore, until the expiration of a full one-year period following termination of your service as an annuitant with the Department of Education on September 23, 2015, or until you would resume providing services to the Department of Education under the 95-day Annuitant Program in a position falling within the Ethics Act’s definition of “public employee,” whichever would come first, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Department of Education. When Section 1103(g) of the Ethics Act would be applicable to you, Section 1103(g) would prohibit you from having contact with the Department of Education under the Contract to the extent such would involve prohibited representation before the Department of Education as set forth 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 2015, when you commenced providing services to the Pennsylvania Department of Education (“Department of Education”) 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 a position referred to herein as the “Annuitant Position,” you became 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. When you ceased providing such services to the Department of Education as an annuitant on September 23, 2015, you became a Benedetto, 16-500 January 14, 2016 Page 5 "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is the Department of Education in its entirety. Until the expiration of a full one-year period following termination of your service as an annuitant with the Department of Education on September 23, 2015, or until you would resume providing services to the Department of Education under the 95-day Annuitant Program in a position falling within the Ethics Act’s definition of “public employee,” whichever would come first, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Department of Education. The restrictions as to representation outlined above must be followed. When Section 1103(g) of the Ethics Act would be applicable to you, Section 1103(g) would prohibit you from having contact with the Department of Education under a contract that you have with Tuscarora Intermediate Unit #11 to the extent such would involve prohibited representation before the Department of Education as delineated above. The proprietyof 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