HomeMy WebLinkAbout18-541 ParkerPHONE: 717 -783 -1610
TOLL FREE: 1- 800- 932 -0936
ADVICE OF COUNSEL
July 10, 2018
To the Requester:
Ms. Elizabeth L. Parker
Dear Ms. Parker:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.yov
18 -541
This responds to your letter dated June 5, 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
7577S. § 1101 et se g., would impose restrictions upon employment of an Information
Technology Manager 1 following termination of employment with the Commonwealth of
Pennsylvania.
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 an Information Technology Manager for the Pennsylvania Department of
Labor and Industry ( "Department of Labor and Industry") Unemployment Compensation
Benefits Applications Information Technology Department. You state that on July 1,
2017, all of the Commonwealth's Information Technology ( "IT ") Departments were
"moved" from their individual agencies to the Delivery Center model under the Office of
Administration. You state that you officially work for the Office of Administration
Employment, Banking and Revenue Delivery Center.
You have submitted a copy of your official Commonwealth position description,
signed February 7, 2017 (prior to the date of the aforesaid "move "), which lists your
department as the Department of Labor and Industry and your job title and working title
as "IT Manager 1" under job code 01546. Your position description indicates that you
report directly to the Director of the Bureau of Application and Service Delivery within
the Department of Labor and Industry's Office of Information Technology. The
"Descripption of Duties" portion of your submitted position description is incorporated
herein by reference.
You have submitted a copy of an organizational chart for the Office for
Information Technology Enterprise, which document is incorporated herein by
reference. The organizational chart includes your name in the portion of the chart
labeled, "Employment, Banking and Revenue IT Delivery Center Department of Labor
and Industry July 2017."
Parker, 18 -541
July 10, 2018
Page 2
A copy of the Job classification specifications for the position of Information
Technology Manager 1 (job code 01546) has been obtained and is also incorporated
herein by reference.
You have been offered an opportunity to provide IT- related services to a
consulting firm the "Firm ") that has a contract with the Pennsylvania Department of
Transportation ('PennDOT') for the delivery of software. You are considering resigning
from your Commonwealth employment and becoming an independent contractor, in
which capacity you would provide services to the Firm as a subcontractor in connection
with the Firm`s contract with PennDOT. You note that a different Delivery Center than
the one for which you work, namely, the Infrastructure and Economic Development
Delivery Center, provides IT services to PennDOT.
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.
It is administratively noted that the Governor's Office of Administration, Office for
Information Technology includes a total of six Delivery Centers which provide IT
services to various agencies.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
to 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 an Information Technology Manager 1 for the Commonwealth of
Pennsylvania, 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. 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; administer'nt 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 Commonwealth employment, 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 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.
Parker, 18 -541
July 10, 2018
Page 3
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 off iciaTTpu� i i 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 an 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 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
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. Shay, 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. Abrams/Webster,
Opinion 95 -011.
A former public officiallpublic 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
Parker, 18 -541
July 10, 2018
Page 4
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
reggard to representation before his former governmental body. The former public
officiafl pub lic 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.
Based upon the submitted facts, the governmental body with which you would be
deemed to have been associated upon termination of your employment with the
Commonwealth of Pennsylvania, hereinafter collectively referred to as "your former
governmental body," would include: (1) the Governor's Office of Administration in its
entirety, including but not limited to the Office for Information Technology and the six
Delivery Centers contained within the Office for Information Technology; and (2) the
Department of Labor and Industry in its entirety.
For the first year following termination of your Commonwealth employment,
Section 1103(g) of the Ethics Act would restrict "representation" of a "person" before
your former governmental body. Section 1103(g) of the Ethics Act would not prohibit
you from providing services to the Firm as an independent contractor /subcontractor in
connection with the Firm's contract with PennDOT subject to the condition that in
performing such activity(ies), you would not engage in prohibited representation before
your former governmental body as set forth above.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(8) 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 osition, for a private pecuniary benefit as prohibited by Section 1103(a of
p p t p
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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion; As an Information Technology Manager 1 for the Commonwealth of
ennsy vania, you would be considered a "public employee" subject to the Public
Official and Employee Ethics Act ( "Ethics Act"), 55 Pa.C.S. § 1101 et seg., and the
Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon
termination of your employment with the Commonwealth of Pennsylvania, you would
become a "former public employee" subject to Section 1103(g) of the Ethics Act.
Parker, 18 -541
July �f' 0, 2018
Page 5
Based upon the submitted facts, the governmental body with which you would be
deemed to have been associated upon termination of your employment with the
Commonwealth of Pennsylvania, hereinafter collectively referred to as "your former
governmental body," would include: (1) the Governor's Office of Administration in its
entirety, including but not limited to the Office for Information Technology and the six
Delivery Centers contained within the Office for Information Technology; and (2) the
Department of Labor and Industry in its entirety.
For the first yyear following termination of your Commonwealth employment,
Section 1103(g) of tF�e Ethics Act would restrict "representation" of a "person" before
your former governmental body. Section 1103(8) of the Ethics Act would not prohibit
you from providing services to a consulting firm (the "Firm ") as an independent
contractor /subcontractor in connection with the Firm's contract with the Pennsylvania
Department of Transportation subiect to the condition that in performing such
activity(ies), you would not engage in prohibite _ representation before your former
governmental body as set forth above.
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.
Any such appeal must be in writingg and must be actuall
received at the Commission within thirty (30) days of the dat45-of this
Advice pursuant to 51 Pa. Code § f3.2(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
Me such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Vt t
Y-
Robin M. Hittie
Chief Counsel