Loading...
HomeMy WebLinkAbout00-548 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 22, 2000 Re: Former Public Employee; Section 1103(g); A; Office B; C; Advisory Board. This responds to your letter of February 16, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act ") presents any restrictions upon employment of a former A to the Director of the C. Facts: On October 15, 1999, you resigned from your position as the A to the Director of the C. You have submitted copies of the following documents which pertain to your former position: your job description; the organizational chart for the C; a Personnel /Position Action Request form approved April 24, 1997 relative to your reclassification to this position; and a memorandum dated January 26, 1999 from the Director and Deputy Director of the C to the Personnel Officer of Office B, all of which documents are incorporated herein by reference. It is noted that your job description designates your "Department" as Office B and your "Bureau /Division" as the C. The memorandum which you have submitted indicates that in your former position with the C, you were significantly involved with the C Advisory Board. The C Advisory Board is charged with providing recommendations to the Governor and Legislature about privatizing the C and making management changes at the C. As A to the Director of the C, you provided the C Advisory Board and the Director, in his capacity as a member of the C Advisory Board, with staff support in all of the decision - making efforts. Following your resignation from the C, you assumed a position with Corporation D effective October 25, 1999. Corporation D represents E's which are F by the C. Such representation usually takes the form of providing consulting services and /or serving as the broker between E's and G's. In your new position with Corporation D, you state that you may be directly or indirectly involved in meetings with E's and G's in the course of obtaining H for E's I or in the process of exploring various J options for the C. You state that many parties, in addition to E's and G's, are interested in exploring various J options for the C. These parties include: (1) members and employees of associations representing various classes of E's and other interest FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 00 -548 Confidential Advice, 00 -548 March 22, 2000 Page 2 groups; (2) members of the C Advisory Board (including your father -in -law and the Director of the C); (3) members of the Administration; (4) elected members of the Legislature; and (5) legislative staff members. You state that you may be directly or indirectly involved in meetings with such parties in the course of exploring various J options for the C. You request an advisory as to the restrictions that would apply to you under the Ethics Act. In particular, you ask whether any restrictions would apply to meeting with members of the C Advisory Board, both on an individual and group basis, to discuss /propose various J options for the C. Discussion: it is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (11), 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In the former capacity as the A to the Director of the C, 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 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: Section 1102. Definitions. Confidential Advice, 00 -548 March 22, 2000 Page 3 "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 11O3(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 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 Confidential Advice, 00 -548 March 22, 2000 Page 4 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 would include Office B in its entirety; the C in its entirety, including the Director and all personnel; and the C Advisory Board. Therefore, for the first year after termination of your service with the Commonwealth, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" such as Corporation D before Office B, the C, and /or the C Advisory Board. As for your specific inquiry regarding meeting with members of the C Advisory Board, both on an individual and group basis, to discuss /propose various J options for the C, you are advised that Section 1103(g) of the Ethics Act would prohibit you from participating in such meetings on behalf of Corporation D during the first year following termination of your service with the Commonwealth. As noted above, the governmental body with which you have been associated upon termination of public service includes the C Advisory Board. 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 1103(b) and 1103(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. Specifically not addressed herein is the applicability of the K. Conclusion: In the former capacity as the A to the Director of the C, 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 your resignation from that position, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you have been associated upon termination of public service includes Office B in its entirety; the C in its entirety, including the Director and all personnel; and the C Advisory Board. The restrictions as Confidential Advice, 00 -548 March 22, 2000 Page 5 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 the Commission within thirty (30) days may result in the dismissal of the appeal. Sin erely, O Doe Vincent J. Do o Chief Counsel