HomeMy WebLinkAbout00-573 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
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ADVICE OF COUNSEL
May 2, 2000
00 -573
Re: Former Public Employee; Section 1103(g); A; Bureau B; C; Employment.
This responds to your letter of April 20; 2000, by which you requested
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, who is currently negotiating with
prospective employers, following termination of service with the Bureau B.
Fa S: You intend to retire from C and seek employment in the private sector.
You have initiated contact with a potential employer and have indicated your intention
to C. separate
Your position from
as A of Bureau B, being d to the business of the potential
employer, Cl Your
employer, provides no venue to make decisions or recommendations regarding the
r e s vo n s or products policy the analysis and development; management of the directives
responsibility for polic Y
system; allocation of personnel to the field; and program management for Program D.
You inquire employ ou the You further inquire p about the restrictions upon you to any
potential empler. You
business dealings with C upon termination of employment.
DisCUssiOn: It is initially noted that pursuant to Sections 1107(10) and
1107(11) requesto r b Ethics
upon he facts which the has advisories
ubm'ittedr In issuing the
requeste b uon
does based
no t engagupon n an independent investigation nvest g lion of the facts, nor doesh t speculate as
does not engage
d o os s which heve e all of the material facts relevant to�the inquiry. 65 §§1107(10), (1 1 truthfully not been submitted. It
disclose
An advisory only affords a defense to the extent the requester has truthfully disclosed
all of the material facts.
As A for the Bureau B, you would be considered a "public employee" su C c
§ to the ; 51 Pa.Code § 1 1 Re This on is based upon he Commission.
job descr description, which
§1 the 51
when reviewed on an objective basis, indicates clearly that the power exists to take
or recommend official action of a non-ministerial ann pure t respect to administering more
of the following: contractin g procurement; planning; inspecting; or
FA)(: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
Confidential Advice, 00 -573
May 2, 2000
Page 2
monitoring grants; leasing; regulating; auditing; or other activities where the economic
impact is greater than de minimis on the interests of another person.
Section 1103(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.
65 Pa.C.S. §1102.
Section 1103(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
1 103(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.
Confidential Advice, 00 -573
May 2, 2000
Page 3
Upon termination of public service, you would become a "former public
employee" subject to Section 1 103(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 ":
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.
"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 anv activity. Examples of prohibited representation include: attempts (1) infl r son a l
a before the former governmental body or bodies;
(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
Confidential Advice, 00 -573
May 2, 2000
Page 4
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. AbramsNVebster,
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
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 would be C in its entirety. Therefore, for the first year after
termination of you service with C, Section 1103(g) of the Ethics Act would apply and
restrict "representation" of "persons" before C.
Your specific inquires will now be addressed.
First, as to Section 1 103(a) of the Ethics Act, you may have discussions with
a company concerning potential employment. However, you may not use confidential
information or the authority of office as a means in whole or part to advance private
employment.
Your second inquiry, involving the restrictions to which you would be subject
following termination of service, has been fully addressed above.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Sections 1103(g) and 1103(a) only. 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
Confidential Advice, 00 -573
May 2, 2000
Page 5
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: As an A with Bureau B, 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 C, you would become a
"former public employee" subject to Section 1103(g) of the Ethics Act. The former
outlined ab e be followed. The propriety of restrictions as to
proposed conduct has only been
outlined ab
addressed under the Ethics Act.
Further, should ement of Financial terminated,
Inte Interests be filed above,
later the than Act would
require that a Statement 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
th e material i facts and committed the acts complained of in reliance on the
truthfully all th
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 §1.3.2(h 1. The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or
eal at
by FAX transmission (717- 787 - 0800 - e missal of
the Commission within thirty (30) days may result in the dis
the appeal.
�SII cerely,
) e
Vincent J. Dopko
Chief Counsel