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Home My WebLink About98-595 TinneyJames H. Tinney 1124 E. Lisburn Rd. Mechanicsburg, PA 17055 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 21, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.Da.us • e - mail: sec@state.Da.us 98 -595 Re: Former Public employee; Section 3(g); Director of the Office of Information Technology /Chief Information Office; Department of Labor and Industry. Dear Mr. Tinney: This responds to your letter of August 19, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon the employment of a director of an information office following termination of service with the Department of Labor and Industry. Facts: You are currently employed as Director of the Office of Information Technology /Chief Information Officer ( "CIO ") in the Senior Management Service of the Commonwealth of Pennsylvania Department of Labor and Industry, Bureau of Information and Technology. You have submitted copies of the following documents: 1) job description; 2) memo of Department of Labor and Industry Secretary Butler, dated April 24, 1996; 3) Executive Board Resolution #OR -96 -169, dated July 12, 1996; 4) organizational chart; and 5) Compensation Plan for the Commonwealth, Amendment No. 595, dated December 3, 1996, which documents are included herein by reference. You state that the Commonwealth is engaged in numerous, large Information Technology ( "IT ") projects, such as the Data Center Consolidation /Outsourcing Project and the Telecommunications Network Project, and that the Commonwealth will continue to "let" many more similar projects over the next several years. You also state that private vendors are interested and encouraged by the Commonwealth to hire Commonwealth employees as the private vendors seek to tap the experience and skills of Commonwealth IT professionals. You are considering terminating your Commonwealth employment in order to seek private employment in the IT field. Many of the firms in which you would be interested do business with the Commonwealth. You state that your interests include technical positions such as CIO, Executive Project Manager, Senior Customer Engineer or IT Administrator, executive managerial, and marketing positions. You request an advisory from the State Ethics Commission regarding the prohibitions and allowances that would apply to you should you terminate your Commonwealth employment and accept a position in the private sector. You seek information as to general and specific prohibitions, as for example, how the Ethics Law would impact upon your being employed by outside vendors in these types of projects. Tinney, 98 -595 September 21, 1998 Page 2 Discussion: As Director of the Office of Information Technology /Chief Information Officer ( "CIO ") in the Senior Management Service of the Commonwealth of Pennsylvania Department of Labor and Industry, Bureau of Information and Technology, you would be considered a "public employee" subject to the Public Official and Employee Ethics Law ( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. §402; 51 Pa.Code §11.1. This conclusion is based upon the job 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; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. While Section 3(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 ": Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, 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 P.S. §403(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 Law as follows: 65 P.S. §402. Section 2. 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. Tinney, 98 -595 September 21, 1998 Page 3 The term "Person" is very broadly defined. It includes, inter aba, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" 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 3(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 though the invoices pertain to a contract that existed prior to termination of public service, Shay, Opinion 91 -012. However, if such a pre- existing contract does not involve the unit where the 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 official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the public official /public employee may not be identified on documents submitted to the former governmental body. The 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 Law 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 3(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public 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 No. 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you would be associated upon termination of public service is the Department of Labor and Industry in its entirety. Therefore, for the first year after termination of your service with the Department of Labor and Industry, Section 3(g) of the Ethics Law would apply and restrict "representation" of "persons" before the Department of Labor and Industry. As to your inquiries, the general and specific prohibitions of Section 3(g) of the Ethics Law are detailed above. As to your potential employment by outside vendors on such projects, you are advised that Section 3(g) does not prohibit such employment. However, care must be exercised if your employer has a contract or involvement with your former governmental body, the Department of Labor and Industry, to ensure that you do not engage in activities which constitute representation on behalf of your new employer before your former governmental body. Tinney, 98 -595 September 21, 1998 Page 4 Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 3(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer 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 Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Director of the Office of Information Technology /Chief Information Officer ( "CIO ") in the Senior Management Service of the Commonwealth of Pennsylvania Department of Labor and Industry, Bureau of Information and Technology, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Department of Labor and Industry, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body would be the Department of Labor and Industry. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 7(11), this 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, providing the requestor 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 writing and must be actually 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, 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. erely, Vincent J. opko Chief Counsel