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HomeMy WebLinkAbout18-518 HealeyPHONE: 717 -783 -1610 TOLL FREE: 1- 800- 932 -0936 ADVICE OF COUNSEL March 20, 2018 To the Requester: Mr. Michael J. Healey, Esquire Healey and Hornack, P.C. Dear Mr. Healey: FACSIMILE: 717- 787 -0806 WEBSITE: www.e#hics.pa,gov_ This responds to your emails of January 31, 2018, 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 PAS. 1101 et seq., would impose restrictions upon employment of a Research Analyst or the FTuman Services and Government Affairs Unit of the Pennsylvania House of Representatives following termination of Commonwealth employment. Facts: You request an advisory from the Commission on behalf of the Pennsylvania State Council of the Service Employees International Union, CTW, CLC (the "Council "). You have submitted facts that may be fairly summarized as follows. From March 2017 to February 2, 2018, Brandon Flood ( "Mr. Flood ") was employed as a Research Analyst for the Human Services and Government Affairs Unit of the Pennsylvania House of Representatives ("House"), You have submitted a cop of a position description (the "Position Description ") for Mr. Flood's former position with the House, which document is incorporated herein by reference. From January 2013 to March 2017, Mr. Flood was employed as Executive Director of the Pennsylvania Legislative Black Caucus. The Council has hired Mr. Flood to serve as its Legislative Director effective February 5, 2018. You state that Mr. Flood's job duties with the Council will include some activities that would be defined as "lobbying" under applicable statutes. Based upon the above submitted facts, you pose the following questions: (1) Whether Mr. Flood would be permitted to keep tabs on activities in the House and report back to Council leaders and superiors; (2) Whether Mr. Flood would be permitted to attend House committee hearings and floor sessions; (3) Whether Mr. Flood would be permitted to advise Council leaders and superiors on legislative strategy within the House; Healey, 18 -518 Waarch 20, 2018 Page 2 (4) Whether Mr. Flood would be permitted to draft policy positions and letters that would be signed by Council leaders and sent to the House; (5) Whether Mr. Flood would be permitted to attend actions or meetings at House offices; (6) Whether Mr. Flood would be permitted to organize legislative actions or meetings at House offices as long as he would not attend those legislative actions or meetings; (7) Whether Mr. Flood would be permitted to attend House fundraisers for incumbents; (8) Whether Mr. Flood would be permitted to represent the Council before candidates for election to the House; (9) Whether Mr. Flood would be permitted to lobby the Senate after March 2018; and (10) Whether Mr. Flood would be permitted to lobby the administration and offices of the Governor. 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. In the former capacity as a Research Analyst for the Human Services and Government Affairs Unit of the House, Mr. Flood 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, 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; 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 Mr. Flood's employment with the House, he 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 erson, with promised or actual compensation, on any matter�before the Healey, 18 -518 March 20, 2018 Page 3 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 "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 /pub if c employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 95 -00 . The term "represent" is also broadly defined to prohibit acting on behalf of any person in awn 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(8) 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. SShay, 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 byy the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011. Heale 18 -518 March 20, 2018 Page 4 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 officiallpublic employee is not restricted as to representation before other agencies or entities. However, the "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/pub[ empl ic oyee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 0 0 ; arp, Opinion 90- 009 -R. The governmental body with which Mr. Flood is deemed to have been associated upon termination of his employment with the House is the House in its entirety. Therefore, for the first year following termination of Mr. Flood's employment with the House, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the House. In particular, during the first year following termination of his employment with the House, Section 1103(g) of the Ethics Act would prohibit Mr. Flood from performing any job dutyy(ies for his new employer, the Council, that would involve prohibited representation before the House as set forth above. Your ten specific questions shall now be addressed. In response to your first, third, and fourth questions, you are advised that Section 1103(8) of the Ethics Act would not prohibit Mr. Flood from: (1) keeping tabs on activities in the House and reportin back to Council leaders and superiors; (2 advising Council leaders and superiors on legislative strategy within the House; or (3) drafting policy positions and letters that would be signed by Council leaders and sent to the House, subject to the condition that in performing such activity(ies), Mr. Flood would not engage in prohibited representation before the House as set forth above. In response to your second question, you are advised as follows. During the one -year period of applicability. of Section 1103(g) of the Ethics Act, Mr. Flood would not be permitted to attend House committee meetings and floor sessions if Mr. Flood's attendance at same would make known to the House his work for the Council. Cf., Confidential Opinion, 17 -007; Anderson, Advice 16 -504; Spa l�or, Advice 10 -553; MacKinnon, Advice 07-580. Otherwise _9r FFo-od would be permitted to attend House committee meetings and floor sessions subject to the conditions that: (1) such meetings and floor sessions would be open to the public; (2) Mr. Flood's role would not go beyond that of a member of the public; and (3) Mr. Flood would not engage in any conduct which would constitute prohibited representation before the House as delineated above. In response to your fifth and sixth questions, you are advised as follows. Section 1103(g)} of the Ethics Act would prohibit Mr. Flood from attending meetings or legislativelother actions at House offices as such would necessarily involve Healey, 18 -518 �cli 20, 2018 Page 5 prohibited representation before the House. Section 11 03() of the Ethics Act would further prohibit Mr. Flood from organizing meetings or legisla ivelother actions at House offices unless he would be able to do so without engaging in prohibited representation before the House. In response to your seventh and eighth questions, you are advised as follows. Section 1103(g) of the Ethics Act would prohibit Mr. Flood from attending House fundraisers for incumbents or otherwise representing the Council before incumbent candidates for election to the House as such would necessarily involve prohibited representation before the House. Section 1103(g) of the Ethics Act would not prohibit Mr. Flood from representing the Council before non - incumbent candidates for election to the House as long as in so doing, he would not engage in any conduct that would involve prohibited representation before the House. In response to your ninth uestion, you are advised that Section 11030 of the Ethics Act would not prohibit Mr. Food from lobbying the Senate after March 2018. In response to your tenth question, you are advised that Section 1103Aces of the Ethics Act would not prohibit Mr. Flood from lobbying the administration and of the Governor. 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. Conclusion: In the former capacity as a Research Analyst for the Human Services and Government Affairs Unit of the Pennsylvania House of Representatives ("House"), Brandon Flood (Mr. Flood) would be considered a public employee subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se q., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec Upon termination of his employment with the House, Mr. Flood became a "former pubblic employee" subject to Section 1103(8) of the Ethics Act. The former governmental body is the House in its entirety. For the first year following termination of Mr. Flood's employment with the House, Section 11030 of the Ethics Act would apply and restrict "representation" of a "person" before the House. The restrictions as to representation outlined above must be followed. During the first year following termination of his employment with the House, Section 1103(8) of the Ethics Act would prohibit Mr. Flood from performing any job duty(ies) for his new employer, the Pennsylvania State Council of the Service Employees International Union, TVV, CLC, that would involve prohibited representation before the House as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. He�a[e , 18 -518 March 20, 2018 Page 6 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 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, rtfi/e� Hi Chief Counsel