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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