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HomeMy WebLinkAbout17-541 Edwards=` r , STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, RA 1 71 08 -1 470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL June 27, 2017 To the Requester: Ms. Olivia Edwards Associate Triad Strategies LLC Dear Ms. Edwards: irANE111 This responds to your letters dated April 28, 2017, and May 4, 2017, 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 a�7S. § 1101 et sec.., would impose restrictions upon employment of a Legisl'altive Secretary I for the Pennsylvania House of Representatives ( "House ") Republican Caucus following termination of Commonwealth employment. Facts: You request an advisory from the Commission regarding the post - empl oyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. From July 5, 2016, to April 21, 2017, you were employed as a Legislative Secretary I with the House Republican Caucus. You have submitted a copy o1 the specification ( "Job Specification ") for your former position as a Legislative Secretary 1 with the House Republican Caucus, which document is incorporated herein by reference. In your former Commonwealth position, you worked in the offices of State Representative Kate Klunk { "Representative Klunk") and State Representative Carl Walker Metzgar (" Representative Metzgar ") following an initial two -month training period. You state that your duties were administrative in nature and included answering phones, managing schedules and expenses, filing, and responding to constituent concerns. You state that you had minimal policy influence as you only filed legislation. You further state that you did not hold meetings or discuss policy on behalf of Representative Klunk or Representative Metzgar. After you resigned from your Commonwealth employment, you began employment with Triad Strategies LLC ( "Triad Strategies ") as an Associate on Triad Strategies' Government Relations team. Triad Strategies is a contract -based firm. You state that you will be filing to be registered as a lobbyist pursuant to Pennsylvania's lobbying disclosure law, 65 Pa.C.S. § 13A01 et seq. FAX: (717) 787 -0806 0 Web Site: www.ethics,state.pa.us 0 e -mail: ethicsC2state.ga.us Edwards, 17 -541 June 2017 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would impose any restrictions upon you with regard to lobbying the House in your role with Triad Strategies. Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(l 1) of e Ethics Act, 65 Pa.C.S. y§§ 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 en age in an independent investigation of the facts, nor does it speculate as to facts tha 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 Legislative Secretary I for the House Republican Caucus, 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; Corey, Advice 08 -596. This conclusion isased upon the Job Specification, which when reviewed on an objective basis, indicates 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; For 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 Commonwealth employment, 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 er�son, with promised or actual compensation, on any matter before the aovernmental bodv with which he has been associated 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. Edwards, 17 -541 un 2017 Page 3 "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 officiaTlpp ii 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 o 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 11 03(8) also generally prohibits the inclusion of the name of a former public off iciallpublic 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 preexisting 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. AbramslWebster, 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 re and 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 /ublic 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-W6;-8fiarp, Opi nion 90- 009 -R. Edwards, 17 -541 un 2017 Page 4 The governmental body with which you are deemed to have been associated upon termination of your Commonwealth employment is the House in its entirety. Therefore, 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 the House. You are advised that during the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from lobbying the House in your role with your new employer, Triad Strategies, as such activity would constitute prohibited representation before the House 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 I I03(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. Conclusion: In the former capacity as a Legislative Secretary I for the Pennsylvania House of Representatives ( "House ") Republican Caucus, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa,C.S. § 1 101 et seg., and the Regulations of the State Ethics ommission, 51 Pa. Code § 11.1 et seq. Upon termination of your Commonwealth employment, you became a 'former public em Iayes" subject to Section 1103(g) of the Ethics Act. The former governmental body is the House in its entirety. For the first year following termination of your Commonwealth employment, Section 1103 {8) of the Ethics Act would apply and restrict "representation" of a "person" before the House. In particular, during the first year following termination of your Commonwealth employment, Section 1103(8) of the Ethics Act would prohibit you from lobbying the House in your role with your new employer, Triad Strategies LLC, as such activity would constitute prohibited representation before the House. 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. Edwards, 17 -541 June 12, 2017 Page 5 Any such appeal must be in writingg and must be actual) received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 93.2(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, P. — � `-1 'ittie Chief Counsel