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HomeMy WebLinkAbout16-540 Confidential ADVICE OF COUNSEL July 11, 2016 16-540 This responds to your letter dated May 6, 2016, by which you requested a confidential 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 an A following termination of employment with Commonwealth Department B. Facts: You request a confidential 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 \[date\], you retired from your employment as an A with Commonwealth Department B, in which capacity you served as the C of the D Section in the E Bureau within Commonwealth Department B’s F Office. You have submitted copies of your official Commonwealth position description and an organizational chart for the E Bureau, both of which documents are incorporated herein by reference. A copy of the job classification specifications for the position of A (job code \[number\]) has been obtained and is also incorporated herein by reference. You state that in your former Commonwealth position, you served on the G, which holds monthly meetings in the F Office to approve Hs selected by Commonwealth Department B’s Is. On \[date\], you began employment with a corporation named \[name of corporation\] (the “Corporation”) as the J for the Corporation’s office located in \[city, state\] (“the Corporation Office”). The Corporation Office is a \[type of firm\] that solicits work from and completes work for Commonwealth Department B, Commonwealth Agency K, and Ls. Such work currently includes \[types of work\]. You anticipate that as your career advances at the Corporation, you will have involvement in all aspects of the Corporation’s work, including \[types of activities\], which work would be performed mainly for Commonwealth Department B and Commonwealth Agency K projects. Confidential Advice, 16-540 July 11, 2016 Page 2 Commonwealth Department B uses the Commonwealth Department B M to do business with Hs. You state that Commonwealth Agency K is also using M for N Commonwealth Agency K projects. You further state that the same O (which includes Ps) that is on file through M is used for both Commonwealth Department B and Commonwealth Agency K projects. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment with Commonwealth Department B. In particular, you pose the following questions: (1) For purposes of applying the Commission’s holding in Abrams/Webster, Opinion 95-011 (pertaining to invoices), what would be the “unit” where you worked at Commonwealth Department B; (2) Whether your name could appear on any submissions to Commonwealth Department B, including Qs, Os, and Rs typically submitted through M; (3) Whether your name could appear on invoices for billing hours typically submitted through M for Commonwealth Department B (Is or F Office Bureaus), Commonwealth Agency K, or L contracts; (4) Whether your name could appear on invoices for billing hours typically submitted through M for Commonwealth Department B (Is or F Office Bureaus), Commonwealth Agency K, or L projects for which the Corporation had entered into agreements prior to your start date with the Corporation; (5) Whether you would be permitted to submit Ss or Ts, typically through M, for Commonwealth Department B (Is or F Office Bureaus), Commonwealth Agency K, or L contracts; (6) Whether you would be permitted to submit Ss or Ts, typically through M, for Commonwealth Department B (Is or F Office Bureaus), Commonwealth Agency K, or L projects for which the Corporation had entered into agreements prior to your start date with the Corporation; (7) Whether your name could appear as either a U or V on Ws for Commonwealth Department B, Commonwealth Agency K, or L projects; (8) Whether you would be permitted to conduct work as a V on existing or new contracts with Commonwealth Department B, Commonwealth Agency K, or Ls; (9) Whether you would be permitted to market the Corporation to Commonwealth Department B, Commonwealth Agency K, or Ls; and (10) Whether you would be permitted to market the Corporation to other Hs doing work for Commonwealth Department B, Commonwealth Agency K, or Ls. 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 Confidential Advice, 16-540 July 11, 2016 Page 3 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 further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In the former capacity as an A for Commonwealth Department B, you would be considered 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. This conclusion is based upon the position description and the job classification specifications, 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 termination of your employment with Commonwealth Department B, 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: § 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. Confidential Advice, 16-540 July 11, 2016 Page 4 "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 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. Confidential Advice, 16-540 July 11, 2016 Page 5 The governmental body with which you are deemed to have been associated upon termination of your employment with Commonwealth Department B is Commonwealth Department B in its entirety, including but not limited to the E Bureau. Therefore, for the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Department B. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. It is preliminarily noted that the submitted facts do not indicate how M is structured for use by entities other than Commonwealth Department B. Given the limited submitted fact that M is a Commonwealth Department B X, it would appear that submissions through M would constitute submissions to Commonwealth Department B. For purposes of applying the Commission’s holding in Abrams/Webster, supra, the “unit” where you worked would be the E Bureau. Cf., \[cites\]. During the one-year period of applicability of Section 1103(g) of the Ethics Act, as a general rule, your name could not be listed on invoices submitted to Commonwealth Department B by the Corporation. However, if you would perform work for the Corporation on Commonwealth Department B contracts that existed before you terminated your employment with Commonwealth Department B, and if such contracts would not involve the “unit” of Commonwealth Department B where you worked, specifically E Bureau, your name could appear on routine invoices submitted to Commonwealth Department B as to those particular pre-existing contracts if required by the regulations of Commonwealth Department B. See, Abrams/Webster, supra. However, the foregoing is limited to the submission of billing hours. Section 1103(g) of the Ethics Act would still prohibit you from permitting your name to appear on other material(s) submitted to Commonwealth Department B through M or any other process, including but not limited to Qs, Os, Rs, and invoices that would not fall within the narrow parameters of the Commission’s holding in Abrams/Webster, supra. Additionally, you are advised that a contract could be considered to involve E Bureau if that Bureau or representative(s) of that Bureau would be involved in recommending, selecting, or approving the contract proposal. If you require additional advice in this regard, you will need to supply all of the material facts regarding the particular contract(s) at issue and the role of E Bureau or its representative(s) as to same. Section 1103(g) of the Ethics Act would prohibit you from: (1) submitting Ss or Ts through M or any other process for Commonwealth Department B (Is or F Office Bureaus), Commonwealth Agency K, or L contracts; or (2) submitting Ss or Ts through M or any other process for Commonwealth Department B (Is or F Office Bureaus), Commonwealth Agency K, or L projects for which the Corporation had entered into agreements prior to your start date with the Corporation, unless you would be able to do so without engaging in prohibited representation before Commonwealth Department B. Section 1103(g) of the Ethics Act would prohibit you from permitting your name to appear as either a U or V on Ws for Commonwealth Department B projects as such would necessarily involve prohibited representation before Commonwealth Department B. Section 1103(g) of the Ethics Act would not prohibit you from permitting your name to appear as either a U or V on Ws submitted to Commonwealth Agency K or Ls subject to the condition that in so doing, you would not engage in any activity(ies) that would involve prohibited representation before Commonwealth Department B. Section 1103(g) of the Ethics Act would prohibit you from conducting work as a V on existing or new contracts the Corporation would have with Commonwealth Confidential Advice, 16-540 July 11, 2016 Page 6 Department B, Commonwealth Agency K, or Ls unless you would be able to do so without engaging in prohibited representation before Commonwealth Department B. Section 1103(g) of the Ethics Act would prohibit you from marketing the Corporation to Commonwealth Department B as such would necessarily involve prohibited representation before Commonwealth Department B. Section 1103(g) of the Ethics Act would not prohibit you from marketing the Corporation to: (1) Commonwealth Agency K; (2) Ls; or (3) other Hs doing work for Commonwealth Department B, Commonwealth Agency K, or Ls, subject to the condition that in performing such activity(ies), you would not engage in prohibited representation before Commonwealth Department B. 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 Y. Conclusion: In the former capacity as an A for Commonwealth Department B, 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 termination of your employment with Commonwealth Department B, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is Commonwealth Department B in its entirety, including but not limited to the E Bureau. For the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Department B. 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. Confidential Advice, 16-540 July 11, 2016 Page 7 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