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HomeMy WebLinkAbout17-577 DeBellSTATE ETHICS f ICS COML41SSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL November 29, 2017 To the Requester: Ms. Jennifer A. DeBell Dear Ms. DeBell: `MIFAFi This responds to your undated letter postmarked October 10, 2017, received October 12, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether Section 1103(g) of the Public Official and Employee Ethics Act TrEfFics Act "), 65 Pa.C.S. § 1103(g), would impose restrictions upon employment of an Executive Policy Manager 3 following termination of employment with the Pennsylvania Department of Human Services. . Facts: You request an advisory from the Commission regarding the post- empryment restrictions of Section 1103(8) of the Ethics Act. You have submitted facts that may be fairly summarized as follows. From March 2015 through September 15, 2017, you were employed as, an Executive Policy anager 3 with the Pennsylvania Department of Human Services ( "Department of Human Services"), in which capacity you. served as the Director of the Office of Policy Development within the Department of Human Services. You have submitted copies of your official Commonwealth position description and an organizational chart for the Department of Human Services, both of which documents are incorporated herein by reference. A copy of the job classification specifications for the position of Executive Policy Manager 3 (job code 16850) has been obtained and is also incorporated herein by reference. You state that in your former position with the Department of Human Services, you were the primary advisor to the Secretary of Human Services on policy issues and strategic planning. You managed a five - member policy team that was heavily involved in the management of all major Department of Human Services initiatives, regulation and policy development, and other activities. After you left your Commonwealth employment, you began employment with the Pennsylvania Association for the Education of Young Children (the "Association "), which is the Pennsylvania state affiliate of the National Association for the Education of Young Children. The Association is a non - profit membership organization that represents about 5,000 individual members. The Association provides resources, support, and advocacy for the high - quality early care and education community on behalf of children in Pennsylvania. In your role with the Association, you are responsible for leading and FAX: (717) 787 -0806 0 Web Site: www.ethics.state . pa.us 0 e -mail: ethicsRstate.pa.us DeBell, 17 -577 November 29, 2017 Page 2 coordinating state and federal early care and education public policy strategy and assisting the Executive Director of the Association in organizational strategic planning and implementation. You express your understanding that pursuant to Section 1103(8g) of the Ethics Act, you would be prohibited from representing the Association before fhe Department of Human Services for one year following termination of your employment with the Department of Human Services. You seek guidance as to whether Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon you with regard to representing the Association before the Governor's Policy Office or other entities /staff within the Governor's Office. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the tics 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 an Executive Policy Manager 3 for the Department of Human Services, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 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 the Department of Human Services, 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 Ise has been associated ": § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a ersoonn, with promised or actual compensation, on any matter before the governmental bodv 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 DeBell, 17 -577 November 29, 2017 Page 3 "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 submittingg 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 off iciab iemployee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 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. Sha , Opinion 91 -012. However, if such a pre- existing contract does not involve the unit 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. AbramsANebster, 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 DeBell, 17 -577 November 29, 2017 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 officiallpublic 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. 16 at 290, 291; Sirolli, Opinion 90 -006; harp, Opinion 90- 009 -R. The governmental body with which you are deemed to have been associated upon termination of your employment with the Department of Human Services is the Department of Human Services in its entirety, including but not limited to the Office of Policy Development. Therefore, for the first year following termination of your employment with the Department of Human Services, Section 1'103(g) of the Ethics Act would apply and restrict "representation" of a "person " — including but not limited to the Association— before the Department of Human Services. In response to your specific question, you are advised that Section 11 03() of the Ethics Act would not prohibit you from representing the Association be ore the Governor's Policy Office or other entities /staff within the Governor's Office as long as in performing such activity (ies), you would not engage in prohibited representation before the Department of Human Services 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 officiallpublic 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 an Executive Policy Manager 3 for the Pennsylvania Department of Human Services ( "Department of Human Services "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et se and the Regulations of the State Ethics Commission, 51 Pa. Code 11.1 et seq. Upon termination of your employment S with the Department of Human ervices, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Department of Human Services in its entirety, including but not limited to the Office of Policy Development. For the first year following termination of your employment with the Department of Human Services, Section 1103 (g) of the Ethics Act would apply and restrict "representation" of a "person " — including but not limited to your new employer, the Pennsylvania Association for the Education of Young Children— before the Department of Human Services. The restrictions as to representation outlined above ©eBell, 17 -577 November 29, 2017 Page 5 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 writingg and must be actual) 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, X 2 Robin �IHMittie Chief Counsel