HomeMy WebLinkAbout00-520 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
February 16, 2000
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us
00 -520
Re: Former Public Employee; Section 1103(g); A; B County C Program; private
consulting firm.
This responds to your letter of December 16, 2000 by which you requested a
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ")
presents any restrictions upon employment of an A following termination of service
with the A County B Program.
Facts: For the past fourteen years, you were employed as A of the B County C
Program. The B County Board of Commissioners appointed you to this position and
you reported to them. You have submitted a copy of your job description, which is
incorporated herein by reference.
Your duties included D. Effective December 31, 1999, you ended your
employment with B County.
You are currently developing an independent consulting practice through which
you intend to provide E Services, primarily to F Organizations. These services will be
provided through a contract between you, as an independent contractor, and the
community organization. Your sole function in these activities will be to assist the F
organizations prepare G in response to requests for proposals. You will also conduct
H for these organizations and prepare I.
You understand that you are prohibited from having business dealings with the
B County C Program for a period of one year. However, you request an advisory as
to the following questions.
1. Whether the Ethics Law would prohibit you from providing consulting
services as described above to private community organizations with which the B
County C Program contracted during the time you were served as A;
2. If the above activity would be prohibited, whether the prohibition would
only apply to your work on G that the organizations would be preparing, or whether
the prohibition would extend to your work preparing any G let by B County. You ask
whether you would be prohibited from conducting any work on behalf of the F
Confidential Advice, 00 -520
February 16, 2000
Page 2
Organizations regardless of the funding source even if the source was not associated
with B County;
3. Whether the Ethics Act would prohibit you from providing these services
to any County agency such as the B County Children and Youth and similar
departments and agencies within B County; and
4. Whether the Ethics Act would prohibit you from entering into a contract
to provide E Services to a J Organization where the J Organization may be interested
in submitting a proposal to provide K Services under the L Department's M initiative
either in the Capital Zone (Cumberland, Dauphin, Lancaster, Lebanon, and Perry
Counties) or elsewhere within the Commonwealth. You note that in your position, you
were actively involved in planning and preparation for M within the Capital Zone group,
but a considerable amount of work remains to be completed prior to the selection of
a J Organization. The anticipated implementation date for the Capital Zone is July 1,
2001. Under any such contract that you might enter into with a J Organization, your
sole responsibility would be to assist in the development of a written response to any
request for proposal that the county or counties may let. You would, in no way,
participate in contract negotiations between the J Organization and the county or
counties.
Discussion: It is initially noted that . pursuant to Sections 1107(10) and
1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the
requestor based upon the facts which the requestor has submitted. In issuing the
advisory based upon the facts which the requestor has submitted, the Commission
does not engage in an independent investigation of the facts, nor does it speculate as
to facts which have not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed
all of the material facts.
In the former capacity as A for B County C Program, 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 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 became a "former public
employee" subject to Section 1 103(g) of the Ethics Act.
While Section 1 103(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 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
Confidential Advice, 00 -520
February 16, 2000
Page 3
aovernmental 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:
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.
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 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
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 95-011.
Confidential Advice, 00 -520
February 16, 2000
Page 4
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
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
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 B County in its entirety including, but not limited to, the B County
B Program. Therefore, for the first year after termination of your service with B
County, Section 1103(g) of the Ethics Act would apply and restrict "representation"
of "persons" before B County.
Your specific inquiries shall now be addressed.
With regard to your first inquiry, you are advised that the Ethics Act would not
prohibit you from providing consulting services as described above to private
community organizations with which the B County B Program contracted, provided
that in performing such services, no prohibited contacts would occur as to B County
and no written materials containing your name would be submitted to B County,
except within the narrow and limited extent permitted by Webster, supra, as set forth
above.
With regard to your second inquiry, the prohibition under Section 1103(g)
restricts a former public official /public employee from "representing" a "person" with
promised or actual compensation on any matter before his former governmental body
for one year after he leaves that body. Thus, you are advised that conditioned upon
the assumptions that your proposed activities would not involve representation before
B County in any way and that you would be able to perform such duties within the
restrictions of 1 103(g) as set forth above, the Ethics Act would not prohibit the
proposed conduct.
With regard to your third inquiry, you are advised that the restrictions set forth
in Section 1103(g) extend to your former governmental body in its entirety. Therefore,
you would be restricted from engaging in prohibited representation before B County
as well as the B County Children and Youth and all other departments and agencies
within B County.
With regard to your fourth inquiry, the Ethics Act would not prohibit you from
entering into a contract to provide E services to a J Organization where the J
Organization may be interested in submitting a proposal to provide K Services under
Confidential Advice, 00 -520
February 16, 2000
Page 5
the L Department's M initiative either in the Capital Zone or elsewhere in the
Commonwealth. If your responsibilities as to the contract would involve activities with
B County which would constitute "representation," then such activities would be
prohibited.
Based upon the facts which 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 for a private pecuniary benefit as prohibited by Section
1103(a) of the Ethics Act. Further, you are advised that Sections 1 103(b) and 1 103(c)
of the Ethics Act 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 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: In the former capacity as A with B County C Program, you would
be considered a "public employee" as defined in the Public Official and Employee
Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service
with B County C Program, you became a "former public employee" subject to Section
1103(g) of the Ethics Act. The former governmental body is B County in its entirety,
including but not limited to the B County C Program. The restrictions as to
representation outlined above must be followed. 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
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
Confidential Advice, 00 -520
February 16, 2000
Page 6
the Commission within thirty (30) days may result in the dismissal of
the appeal.
erely,
Vincent J. Dopko
Chief Counsel