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HomeMy WebLinkAbout18-502 ConfidentialPHONE: 717- 783 -1610 TOLL FREE: 1- 800- 932 -0936 To the Requester: r ,. c,� STATE ETHICS COMMISSION FACSIMILE: 797- 787 -0806 FINANCE BUILDING WEBSITE: www.ethics.oa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL January 23, 2018 18 -502 This responds to your letter dated November 28, 2017, 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 P-a-.7S. § 1101 et seq., would impose restrictions upon employment of an A following termination of employment with Commonwealth Department B. Facts: I You request a confidential advisory from the Commission regarding the ost- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as an A with Commonwealth Department B in Unit C. You have submitted copies of your official Commonwealth position description, the job classification specifications for the position of A (job code [number]), and an organizational chart for Unit C, which documents are incorporated herein by reference. In your current position with Commonwealth Department B, you [help with the performance of certain activities]. You additionally [perform certain functions]. You are considering retiring from your employment with Commonwealth Department B and obtaining employment in the private sector. 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 note that Public Official D has proposed a plan for the E of Commonwealth Department B with various other Fs, and you ask how such an E would affect the post - employment restrictions imposed upon you by the Ethics Act. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e ERcTAct, 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. Confidential Advice, 18 -502 anusry , Page 2 As an A for Commonwealth Department B, you would be considered a " ublic cs employee" subject to the Ethics Act and the Regulations of on at is based Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion upon the postt of 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 mirnmis on the interests of another person. Consequently, upon termination of your employment with Commonwealth Department B, you would become 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 Former official or employee. - -No former public official for public employee shall rereresent a e�rsonn, with promised or actual compensation, on any matter before the rrnvarnmpntnl hodv with which he has been associated for one year after he leaves 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 activify which includes, but is not limited to, the following: personal appearances, negotiations, lobby'n and submittingg bid or contract proposals which officialg ed %y or contain the name of a former public 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 p blicandicial subdivisions or employee plo ee is or has been appointed or elected offices within that governmental body. 65 Pa.C.S. § 1102. Confidential Advice, 18 -502 anuary , Page 3 The term "Person" is very broadly defined. It includes, inter alia, corporations and other Confidential Opinion, nion, 93 005,luasswell as ae new off employe . Ledebur, Confidential 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 apppearances 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 officiallpublic 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 ppropposal, 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. Shy, Opinion 91.012. However, if such a pre -existing contract does not involve the unit where a former public employee worked, the nayyme of the former public he a agency to which the routine invoices being submitted. Abrramsfwebstere, Opinion 95 -011. g 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 farmer governmental body. The former public official/public employee ,,is not restricted as to representation before other agencies or entities. However, tine "governmental body with which a public officiallpublic 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, Lg islative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; harp, pinion 90009 -R. The governmental body with which you would be deemed to have been associated upon termination of your employment with Commonwealth Department B would be Commonwealth Department B in its entirety, including but not limited to Unit C. Therefore, for the first year following termination of your employment with Commonepresenttation " of a "person'" beforelCommonwealth ( tDepartmentB. apply and restrict "representation" Turning to your specific question, it appears that the proposed E of Commonwealth Department B with various and sr Fs is speculative foathis p9ssi to address time. As such, it would be both premature p Confidential Advice, 18 -502 anuary , Page 4 the issue of whether such an E would impact the post-employment arestrictions that imposed upon you by Section 1103(g) of the Ethics Act. if it w suld become advice on the issue. an E would actually occur, you may at that point pp 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 bein in the ublic position, for a private pecuniary benefit as prohibited by Section 1031 #,= os the Ethics Act. Further, you are advised that sections to a, d fall (u)lic employee Act provide in part that no person shall offer p and no public officiallpublic employee shall solicit or accept anything o 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 G. Conclusion: As an A for Commonwealth Department B, you would be consi ere a "public employee" subject to the Public official and sEmplhyee Ethics Ethics Omission, ics Act "), 65 Pa.C.S. § 1101 et se ., a g, 51 Pa. Code § 11.1 et se Upon termination of your employment with Commonwealth Department B, you would become a former public ployesubject to Section 1103(g) of the Ethics Act. The former governmental Y would Commonwealth Department B in its entirety, including but not limited to Unit C. 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 must be Commonwealth Department the propriety of the proposed conduct entation has only been above must be followed. Lastly, 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 il e�ssued by the Comm ssi nil be scheduled and a formal Opinion An such appeal must be in writingg and must be aWot y Commission within thirty (30) days of the date received at the � The appeal may be vice pursuant to 51 Pa. Code § 3.2(h). pp received at the Commission by handy de live , United States mail, rece� delivery service, or by FAX transmission (71 - 787 - 0806). Failure to Confidential Advice, 18 -502 Ta—nua-q2T, MIT- Page 5 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, '� -U v/ r Robin M. Hittie Chief Counsel