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HomeMy WebLinkAbout20-528 TropassoPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL July 1, 2020 To the Requester: Ms. Carrie L. Tropasso Dear Ms. Tropasso: This responds to your letter dated June 4, 2020, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 7a. TS. § 1101 et sec.., would impose restrictions upon employment of an Applications Developer Administrator following termination of employment with the Commonwealth of Pennsylvania. Facts: You request an advisory from the Commission regarding the post- e pme oyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. At the time that you submitted your inquiry, you were employed as an Applications Developer Administrator for the Commonwealth of Pennsylvania. You have submitted a copy of your official Commonwealth position description ("Position Description"), which lists your department as the Pennsylvania Department of Transportation ("PennDOT") and your organization as PennDOT's Bureau of Business Solutions and Services. You have additionally submitted a copy of the job classification specifications for the position of Applications Developer Administrator (job code 01525). The Position Description and the aforesaid job classification specifications are incorporated herein by reference. Per the Position Description, you were the Geographic Information Systems ("GIS") Administrator of the Pennsylvania Emergency Management Agency Olutions ") IS Section in the Data Administration Division of the Bureau of Business Management within the Infrastructure and Economic Development Information Technology Delivery Center under the Governor's Office of Administration ("Office of Administration"). Tropasso, 20-528 July 1, 2020 Page 2 You stated that your last official day of employment with the Commonwealth would be June 12, 2020. You further stated that followin, termination of your Commonwealth employment, you would begin employment with a private company named "Bent Ear Solutions' (the "Company"), which performs work for the Commonwealth. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you or the Company during the first year following termination of your Commonwealth employment. In particular, you pose the following questions: (1) Whether you would be permitted to perform work for any Commonwealth agenciesyentities as a Company employee; (2) Whether you would be permitted to supervise Company employees who may be conducting work for the Commonwealth as long as you would not participate in meetings and your name would not appear on any invoices to the Commonwealth; (3) Whether the Company would be permitted to continue performing work for the Commonwealth following the commencement of your employment with the Company; and (4) Whether the Company would be permitted to perform work for PEMA as long as you would not be directly conducting such work. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has trut fully disc osed all of the material facts. As an Applications Developer Administrator for the Commonwealth of Pennsylvania, 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 Poson Description and the job classification specifications, which when reviewed on an objective basis, indicate 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; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of your Commonwealth employment, 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": § 1103. Restricted activities Tropasso, 20-528 July 1, 2020 Page 3 (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: § 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, pinion 95-001. The term "represent" is also broadly defined to prohibit acting on behalf of any person in awn 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 ggovernmental 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 if the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing contract does not involve the unit where a former public employee worked, the name of Tropasso, 20-528 July 1, 2020 Page 4 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 former ublic official/public employee may not be identified on documents submitted to the former governmental body. The former 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, Le islative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; harp, Opinion 90-009-R. Based upon the submitted facts, the governmental body with which you would be deemed to have been associated upon termination of your employment with the Commonwealth of Pennsylvania, hereinafter collectively referred to as "your former governmental body," would include: (1) the Office of Administration in its entirety; (2) PennDOT in its entirety; and (3) PEMA in its entirety. Cf., Hill, Advice 18-575; Parker, Advice 18-541. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before your former governmental body as delineated above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be considered. In response to your first and second questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit ou, as a Company employee, from: (1) performing work for Commonwealth agency(ies)/entity(ies) not included within your former governmental body as set forth above; or (2) supervising Company employees who may be conducting work for the Commonwealth, subject to the condition that in performing such activity(ies), you would not engage in prohibited representation before your former governmental body as delineated above. Your third and fourth questions cannot be addressed in this advisory because you have not established legal standing to request an advisory opinion regarding the proposed conduct of the Company. However, it is noted that Section 1103(g) of the Ethics Act applies to former public officials/public employees and would not apply to restrict the conduct of the Company. Based upon the facts that 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 or employment, or confidential information received by being in Tropasso, 20-528 July 1, 2020 Page 5 the public position, 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 or give 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 Governor's Code of Conduct. Conclusion: As an Applications Developer Administrator for the Commonwealth of Pennsylvania, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ('Ethics Act"), 65 Pa.C.S. § 1101 et sec.., and the Regulations of the State Ethics Commission, 51 Pa. Code § 1 1T et seq. Upon termination of your employment with the Commonwealth of Pennsylvania, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. Based upon the submitted facts, the governmental body with which you would be deemed to have been associated upon termination of your employment with the Commonwealth of Pennsylvania, hereinafter collectively referred to as "your former governmental body," would include: (1) the Governor's Office of Administration in its entirety; (2) the Pennsylvania Department of Transportation in its entirety; and (3) the Pennsylvania Emergency Management Agency in its entirety. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would restrict "representation" of a "person" before your former governmental body. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you, as an employee of a private company named "Bent Ear Solutions" (the "Company"), from: (1) performing work for Commonwealth agency(ies)/entity(ies) not included within your former governmental body as set forth above; or (2) supervising Company employees who may be conducting work for the Commonwealth, subject to the condition that in performing such activity(ies), ou would not engage in prohibited representation before your former governmental boo as delineated above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Tropasso, 20-528 July 1, 2020 Page 6 Any such appeal must be in writingg and must be actual/ 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. Sincerely, Gr. Robin M. Hittie Chief Counsel