HomeMy WebLinkAbout00-576 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
May 5, 2000
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us
00 -576
Re: Former Public Employee; Section 1103(g); A; B; C.
This responds to your letter of April 24, 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 a A following termination of service with the B, C.
Facts: You are an A for the B, C. You have supplied your job description which
is incorporated herein by reference. From July 1999 through February 29, 2000, your
primary assignment was as the project lead for the D. Beginning on March 1, 2000, you
were assigned to work on issues relating to the new E. Some of your tasks include: F.
You are considering a potential offer from a private sector firm to be its G. You inquire
as to the extent of the prohibitions of the Ethics Act upon your private sector
involvement with the C. You further inquire as to whether the Ethics Act restrictions
extend beyond 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.
As an A for the B, 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 would become a "former
public employee" subject to Section 1103(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 ":
Confidential Advice, 00 -576
May 5, 2000
Page 2
65 Pa.C.S.
The
official or
Ethics Act
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.
§1103(g) (Emphasis added).
terms "represent," "person," and "governmental body with which a public
public employee is or has been associated" are specifically defined in the
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
Confidential Advice 00 -576
May 5, 2000
Page 3
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 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 the B including the C. Therefore, for the first year after
termination of service with the C, Section 1 103(g) of the Ethics Act would apply and
restrict "representation" of "persons" before the B.
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 1 103(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: As an A with the B, 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 termination of service with the B, C, you would become a "former
public employee" subject to Section 1103(g) of the Ethics Act. The former governmental
body would be the B. The restrictions as to representation outlined above must be
Confidential Advice, 00 -576
May 5, 2000
Page 4
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.
Vincent J. Dopko
Chief Counsel