HomeMy WebLinkAbout18-529 DohertyPHONE: 717 -783 -1610
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ADVICE OF COUNSEL
April 27, 2018
To the Requester:
Ms. Jennifer Doherty
Dear Ms. Doherty:
FACSIMILE: 717 -787 -0806
WEBSITE: www.ethics.12a.aov
IF -0 nee
This responds to your letter dated March 21, 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
P—a-TS. § 1101 et se , would impose restrictions upon employment of the Chief
Procurement Officer o�t he Bureau of Procurement within the Pennsylvania Department
of General Services following termination of Commonwealth employment.
Facts: You request an advisory from the Commission regarding the post -
empToyment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
You are currently employed as the Chief Procurement Officer of the Bureau of
Procurement within the Pennsylvania Department of General Services ( "Department of
General Services "). You have submitted a copy of your official Commonwealth position
description, which document is incorporated herein by reference. A copy of the job
classification specifications for the position of Chief Procurement Officer of the Bureau
of Procurement (job code 02870) has been obtained and is also incorporated herein by
reference.
You state that in your role as Chief Procurement Officer, you have not recruited
any business or company to the Commonwealth, nor have you been involved in
awarding or promising qrants or loans to companies doing business with or in the
Commonwealth or any other companies.
You are considering obtaining employment with Amazon in the position of Global
Solutions Lead for Amazon Business — State Government. You state that in your
current Commonwealth position, you have not actively participated in recruiting Amazon
to the Commonwealth, nor have you actively participated in inducing Amazon to open or
expand a plant, facility, or branch in the Commonwealth through a grant or loan of
money or a promise of a grant or loan of money from the Commonwealth.
Doherty, 18 -529
April 27, 2018
Page 2
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you following termination of
your Commonwealth employment.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e 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.
As the Chief Procurement Officer of the Bureau of Procurement within the
Department of General Services, you would be considered a "public employee" and an
"executive -level State 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.
Consequently, upon termination of your employment with the Department of
General Services, you would become a "former public employee" and a "former
executive -level State employee" subject to the restrictions of Section 1103(g) and
Section 1103(i) of the Ethics Act.
Section 1103(i) restricts former executive -level State employees as follows:
§ 1103, Restricted activities
(i) Former executive -level employee, - -No former
executive -level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this Commonwealth, provided that the
above prohibition shall be invoked only when the recruitment
or inducement is accomplished by a grant or loan of money
or a promise of a grant or loan of money from the
Commonwealth to the business or corporation recruited or
induced to expand.
65 Pa.C.S. § 1103(1).
Section 1103(1) restricts the ability of a former executive -level State employee to
accept employment or otherwise engage in business relationships following termination
of State service, under certain narrow conditions. The restrictions of Section 1103(i)
apply even where the business relationship is indirect, such as where the business in
question is a client of a new employer, rather than the new employer itself. See,
Confidential Opinion, 94 -011. However, Section 1103(i) would not restrict you
being emiployed by, receiving compensation from, assisting, or acting in a
representative capacity for a business such as Amazon subject to the conditions that
you did not actively participate in recruiting such business to Iennsylvania, and that you
did not actively participate in inducing such business to open or expand a plant, facility,
or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or
loan of money from the Commonwealth of Pennsylvania.
Doh�ert , 18 -529
April 27, 2018
Page 3
Unlike Section 1103(1), Section 1103(q) does not prohibit a former public
official/public employee from accepting a position of employment. However, it does
restrict the former public officiallpublic 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
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 activify which includes, but is not limited to, the
following: personal appearances, negotiations, lobbyin and
submittingg bid or contract proposals which are signed y or
contain Me 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 officiaVp_u6 it c employee himself,
Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur,
Opinion 95 -00 .
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
�pro osal, document, or bid, if submitted to or reviewed by the former governmental
oI , constitutes an attempt to influence the former governmental body. Section
(g) also generally prohibits the inclusion of the name of a former public
Doh�ert , 18 -529
April 27, 2018
Page 4
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. S�hpy, 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.
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() only restricts the former public official/public employee with
re and 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. 15 at 290, 291; Sirolli, Opinion 90-00 Sharp, Opinion 90 -009 -R.
The governmental body with which you would be deemed to have been
associated upon termination of your employment with the Department of General
Services would be the Department of General Services in its entirety, including but not
limited to the Bureau of Procurement. Therefore, for the first year ermination
of your employment with the Department of General Services, Section 1103(g) of the
Ethics Act would apply and restrict "representation" of a "person" before the Department
of General Services.
You are advised that Section 1103(8) of the Ethics Act would not prohibit you
from accepting employment with Amazon in the position of Global Solutions Lead for
Amazon Business — State Government. However, during the first year following
termination of your employment with the Department of General Services, Section
1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) that
would involve prohibited representation before the Department of General Services as
set forth above.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Sections 1103(8) and 1103(i) 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 'udgment 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.
Doherty, 18 -529
April 27, 2018
Page 5
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: As the Chief Procurement Officer of the Bureau of Procurement
within the o Pennsylvania Department of General Services ( "Department of General
Services "), you would be considered a "public employee" and an executive -level State
employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seg., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et sec. Upon termination of your employment with the Department of
General Services, you would become a "former public employyee '. and a "former
executive -level State employee" subject to the restrictions of Section 11030 and
Section 1103(i) of the Ethics Act, 65 Pa.C.S. 1103(g), 1103(i). Under Section 1103(i)
of the Ethics Act, you would not be prohibited from being employed by, receiving
compensation from, assisting, or acting in a representative capacity for a business such
as Amazon subject to the conditions that you did not actively participate in recruiting
such business to Pennsylvania, and that you did not actively participate in inducing such
business to open or expand a plant, facility, or branch in Pennsylvania, through a grant
or loan of money or a promise of a grant or loan of money from the Commonwealth of
Pennsylvania.
The governmental body with which you would be deemed to have been
associated upon termination of your employment with the Department of General
Services would be the Department of General Services in its entirety, including but not
limited to the Bureau of Procurement. For the first year following termination of your
employment with the Department of General Services, Section 1103 (g) of the Ethics Act
would apply and restrict "representation" of a "person" before the Department of
General Services. The restrictions as to representation outlined above must be
followed.
Section 1103(g) of the Ethics Act would not prohibit you from accepting
em
plo meet with Amazon in the position of Global Solutions Lead for Amazon Business
-- State Government. However, during the first year followingg termination of your
employment with the Department of General Services, Section 1103(g) of the Ethics Act
would prohibit you from performing an job duty(ies) that would involve prohibited
representation before the Department of General Services as set forth above. 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,
DOW , 18 -529
April 27, 2018
Page 6
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,
r�
Robin M. Hittie
Chief Counsel