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HomeMy WebLinkAbout19-516 ConfidentialPHONE: 717 -783 -1610 TOLL FREE: 1 -800- 932 -0936 To the Requester: ADVICE OF COUNSEL April 30, 2019 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19 -516 This responds to your letter dated February 5, 2019 (postmarked February 6, 2019, received February 25, 2019), 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 F -a 7S. § 1101 et seq., would impose restrictions upon employment of an A following termination of employment with Commonwealth Agency B. Facts: You request a confidential advisory from the Commission regarding the p� employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On [datel, you terminated your employment as an A with Commonwealth Agency B in the C within the D. You have submitted copies of a position description for the position of A and an organizational chart for Commonwealth Agency B, both of which documents are incorporated herein by reference. In your former position with Commonwealth Agency B, you were responsible for the [performance of certain functions]. You state that [ erforming a particular function] involved [performing a particular task]. Your job cuties involved, inter alia, [the performance of various activities]. You recently joined a firm (the "Firm ") that provides [type of services to numerous clients, including governmental entitles. Your role with the Firm involves providing Firm clients with assistance on pro ects through the [type of process], which includes [the performance of various activities. The Firm is the E for Commonwealth Agency B under a contract that was awarded before you began your employment with Commonwealth Agency B in [month, year]. The aforesaid contract was initiated by and is funded and managed by the F of Commonwealth Agency B. The F and the D are separate Gs within Commonwealth Agency B. You state that your work for the Firm will not involve any direct contact with Commonwealth Agency B officials via meetings, telephone, written documentation, email, or social media. You further state that you will not be named as a technical contact person and that your name will not appear on any documents or work product. Confidential Advice, 19 -516 April Page 2 You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment with Commonwealth Agency B. In particular, you pose the following questions: (1) Whether you would be permitted to perform work for the Firm on its E contract with Commonwealth Agency B in a "non- representative role "; and (2) Whether your name could appear on invoices submitted to Commonwealth Agency B by the Firm for work that you would perform on its E contract with Commonwealth Agency B. Discussion: It is initial) 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. In the former capacity as an A for Commonwealth Agency B, 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 u on 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 your employment with Commonwealth Aggency B, you 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 ersonn, with promised or actual compensation, on any matter before the 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 Confidential Advice, 19 -516 Aril 30, 2019— Page 3 "Represent." To act on behalf of any other person in an activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submittingg 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 officiaTlppu iT 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 any 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(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. Shama , 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. AbramsM/ebster, 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 Confidential Advice, 19 -516 April Page 4 influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Section 1103(8) only restricts the former public official/public employee with re rd 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" �s not limited to the particular subdivision of the agency or other governmental body where the public officiallpublic employee had influence or control but extends to the entire body. See, Le islative .Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion0 arp, pinion 90 -00 - The governmental body with which you are deemed to have been associated upon termination of your employment with Commonwealth Agency B is Commonwealth Agency B in its entirety. Therefore, for the first year following termination of your employment with Commonwealth Agency B, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person" before Commonwealth Agency B. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first question, you are advised that Section 1103(8) of the Ethics Act would prohibit you from performing work for the Firm on its E contract with Commonwealth Agency B unless you would be able to do so without engaging in prohibited representation before Commonwealth Agency B 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, as a general rule, your name could not he listed on invoices submitted to Commonwealth Agency B by the Firm. However, based upon the submitted facts that: (1) the Firm's E contract with Commonwealth Agency B existed before you began —let alone terminated —your employment with Commonwealth Agency B; and (2) the Firm's E contract involves the F of Commonwealth Agency B rather than the "unit" of Commonwealth Agency B where you worked, you are advised that your name could appear on routine invoices submitted to Commonwealth Agency B as to the Firm's pre- existing E contract if required by the regulations of Commonwealth Agency B. See, AbramsANebster, supra. However, the foregoing is limited to the submission of TI T1 g ours. Section 1 03 ) of the Ethics Act would still prohibit you from engaging in conduct falling ith�he ambit of prohibited representation before Commonwealth g p p Agency B as delineated above. 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 EEthics Act provide in part that no person shall offer or give to a public official /public employee and no public officiallpublic 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 Confidential Advice, 19-516 April Page 5 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 capacit as an A for Commonwealth Agency B, you would a considered a "public emppI pe�'Osubject to the Public Official and Employee Ethics Act "Ethics Act" 65 Pa.C.S. 1 et se and the Re ulations of the State Ethics Commission, 51 )Pa. Code § 1 et sec . �pon terminations of your employment with Commonwealth Agency B, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is Commonwealth Agency B in its entirety. For the first year following termination of your employment with Commonwealth Agency B, Section 1103(g) of the Ethics Act would appiy and restrict "representation" of a "person" before Commonwealth Agency B. 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 wrifingg 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 (717-787-01806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. �i Wel Robin M 2)e + Chief Counsel