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HomeMy WebLinkAbout99-525 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 15, 1999 99 -525 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 1103(i); J Program Assistant Administrator; Department A; E; Employment. This responds to your letter of February 28, 1999 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any restrictions upon employment of a J Program Assistant Administrator following termination of service with Department A. Facts: You are currently a J Program Assistant Administrator with the Division B of Bureau C, Program D, Department A. In that position you are the contract officer for a multi -year contract with E. You have submitted your current job description, which document is incorporated herein by reference. You would like to interview for a position with E and request an advisory from the State Ethics Commission as to whether you may interview and accept a position with E. It is noted that you have requested advice from Attorney F. You have submitted Attorney F's reply, the pertinent facts of which are as follows. You have held your current position with Department A since October, 1996. You are responsible for overseeing Division contracts, including a sole source contract with E which was completed by your supervisor and became effective January 1, 1997, with a termination date of December 31, 2001. The original E contract did not list you as Department A Project Officer, but two subsequent amendments did. The contract price is now $3,547,849. Through the contract, E is to develop G. You indicated to Attorney F an interest in applying for the position of Director of Grants and Special Projects in the Department H of E, which position would involve the oversight of E contracts, including the one with Department A. You asked if there would be any conflict in your applying, interviewing, or being offered such a position with E. You have submitted a job description for the position with E, which document is incorporated herein by reference. Based upon the Governor's Code of Conduct, the State Adverse Interest Act, and the State Ethics Act, Attorney F opined that: there could be no understanding on either your part or on the part of E that any offer or lack of offer of employment would FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Confidential, 99 -525 March 15, 1999 Page 2 in any way influence your present or future dealings with E; should you accept the position, for one year following termination of service with Department A you could not act or communicate with Department A on E's behalf and your name could not appear on any contract bid or proposal submitted to Department A by E; and that you should consider removing yourself from dealing with the E contract until you are either hired by E or informed that you were not selected for the position. Attorney F also suggested that you seek an opinion from the State Ethics Commission. Discussion: As the J Program Assistant Administrator for the Division B of the Bureau C, Program D of Department A, you would be considered a public employee and an "executive -level State employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa.Code § 1 1.1. Section 1 103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. Definitions. "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. Confidential, 99 -525 March 15, 1999 Page 3 65 Pa.C.S. §1102. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. In applying the above provisions of the Ethics Act to your inquiry, you are advised that Section 1 103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or seeking employment; however, the public official /public employee may not use the authority of his public position — or confidential information obtained by being in that position — for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1 103(j). As to Section 1103(a) of the Ethics Act, you may not use confidential information or the authority of office as a means in whole or part to advance private employment. The actions which you have already taken constitute past conduct which cannot be addressed in an advisory format. The Commission does not conduct investigations in an advisory context to determine the facts in a case. The advisory only addresses conduct as to future conduct based upon submitted facts. The foregoing is noted because of what appears to be extensive conduct on your part as to the sole source contract in this case. Therefore, assuming that you have not used confidential information or the authority of office to advance your prospect of employment or to obtain the employment, Section 1103(a) would not prohibit you from applying for the position. In addition, Sections 1103(b) and 1 103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /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. If you apply for, obtain employment and then terminate Commonwealth employment, 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. Confidential, 99 -525 March 15, 1999 Page 4 Section 1103(i) restricts former executive -level State employees as follows: Section 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 participates 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(i). Section 1 103(i) 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 the new employer, rather than the new employer itself. See, Confidential Opinion No. 94 -011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for the new employer provided and conditioned upon the assumptions that you did not actively participate in recruiting the new employer to Pennsylvania, and that you did not actively participate in recruiting or inducing the new employer 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 to the new employer. Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment. However, 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 1103. Restricted activities. (g) Former official or employee. - -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 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: Confidential, 99 -525 March 15, 1999 Page 5 65 Pa.C.S. §1102. Section 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. The term "Person" is very broadly defined. It includes, inter alia, 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 /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 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 -01 1. 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 Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to Confidential, 99 -525 March 15, 1999 Page 6 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 1 103(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 /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 Department A in its entirety. Therefore, for the first year after termination of your service with Department A, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Department A. As a practical matter, it would appear to be impossible for you to perform the functions of the position of private employment to the extent that you would be involved with Department A without transgressing Section 1103(g). 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. Conclusion: As a J Program Assistant Administrator with Division B of the Bureau C, Program D of the Commonwealth of Pennsylvania, Department A, you are a public employee and an executive -level State employee subject to the Ethics Act. Upon termination of service you would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1 103(g) and Section 1103(i) of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Section 1 103(a) 'of the Ethics Act would not preclude you from obtaining employment with an entity as to which you had involvement regarding a sole source contract provided you did not use confidential information or the authority of office to advance your prospect of employment or to obtain employment with that entity. 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 the E based upon the assumptions that you did not actively participate in recruiting E to Pennsylvania, and that you did not actively participate in recruiting or inducing E 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. With regard to Section 1103(g), the restrictions as outlined above must be followed. The former governmental body would be Department A. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act 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 1107(11), 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 requestor has disclosed Confidential, 99 -525 March 15, 1999 Page 7 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. Si ce ply, Vincent '' Dop o Chief Counsel