Loading...
HomeMy WebLinkAbout20-530 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL July 14, 2020 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 20-530 This responds to your letter dated June 19, 2020, and your submission received June 24, 2020, by which Vou requested a confidential advisory from the Pennsylvania State Ethics Commission 'Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act") 65 75-78. § 1101 et seq., would impose restrictions upon employment of the A for the B C following termination of employment with the B C. Facts: You request a confidential advisory from the Commission regardingthe p�mployment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. Effective [date], you resigned from your employment as the A for the B C. You have submitted a copy of a document you prepared which summarizes the work you performed in your aforesaid former position with the B C, which document is incorporated herein by reference. You have additionally submitted copies of orgganizational charts for the B and the B C, which documents are also Incorporated herein by reference. You state that in your former position as the A for the B C, you exclusively and directly supported the B C across the entire scope of your work duties throughout your whole tenure of employment with the B C. You state that you were hired for your aforesaid former position by the B C and that you directly reported to a B C D, with "dotted line" reporting to the B E. You state that during your employment with the B C, you were on the payroll of the B F due to a nuance in B financial practices. You state that per B financial practices, every B G, regardless of its size, gets the same number of slots on its payroll to pay its H employees. If a B G needs an additional slot to pay one of its H employees, the B G will request to use a slot for an H employee on the payroll of the B IF and will reimburse the B F for the payroll expense through an Interfund transfer at the end of the fiscal year. In accordance with the aforesaid B financial practices, the B F was used solely as a means to distribute your pay to you. Confidential Advice, 20-530 July Page 2 You are pursuing building Xour own I. Pursuant to a contract with the B, a company named [name of company] (the `Company") helps businesses like your proposed I with becoming eligible to bid on contracts for projects related to the J of the B. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment with the B C. In particular, you pose the following questions- (1) What would be considered your former governmental body; and (2) Whether you/your I would be permitted to seek the Company's assistance with regard to becoming eligible to bid on contracts for projects related to the B's J. 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 truthffully disclosed all of the material facts. In the former capacity as the 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 submitted ems, 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 employment with the B C, you became 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 (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 bodv with which he has been associated for one year after he leaves that Eody. 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: Confidential Advice, 20-530 July Page 3 § 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 officiaVpuB iic emplo ee himself, Confidential Opinion,, 93-005, as well as a new governmental employer. Ledebur, Opinion 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 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 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 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 public 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 Confidential Advice, 20-530 July Page 4 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 90 -DROU; STarp, upinion - - . Based upon the submitted facts —and in particular the submitted fact that the B F was used solely as a means to distribute your pay to you —you are advised that the governmental body with which you are deemed to have been associated upon termination of your employment with the B C is the B C in its entirety. Therefore, for the first year following termination of your employment with the B C, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" —including but not limited to yourself/your I —before the B C. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be considered. Your first question has been addressed above In response to your second question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you/your I from seeking the Company's assistance with regard to becoming eligible to bid on contracts for projects related to the B's J sub'ect to the condition that in so doing, you would not engage in prohibited representation efore the B C as delineated above. 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 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. Conclusion: Based upon the submitted facts that: (1) effective [date], you resigned from your employment as the A for the B C; (2) in your former position as the A for the B C, you exclusively and directly supported the B C across the entire scope of your work duties throughout your whole tenure of employment with the B C; (3) you were hired for your aforesaid former position by the B C, and you directly reported to a B C D, with "dotted line" reporting to the B E; (4) during your employment with the B C, you were on the payroll of the B F due to a nuance in B financial practices; (5) per B financial practices, every B G, regardless of its size, gets the same number of slots on its payroll to pay its H Confidential Advice, 20-530 July Page 5 employees; (6) if a B G needs an additional slot to pay one of its H employees, the B G will request to use a slot for an H employee on the payroll of the B F and will reimburse the B F for the payroll expense through an interfund transfer at the end of the fiscal year- (7) in accordance with the aforesaid B financial practices, the B F was used solely as a means to distribute your pay to you; (8) you are pursuing building your own I; and (9) pursuant to a contract with the B, a company named [name of company] (the "Company") elps businesses like your proposed I with becoming eligible to bid on contracts for projects related to the J of the B, you are advised as follows. In the former capacity as the A for the B C, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act'), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seg. l ion termination of your employment with the B C, you became a "former em public ployee subject to Section 1103(g) of the Ethics Act. Based upon the submitted facts —and in particular the submitted fact that the B F was used solely as a means to distribute your pay to you —you are advised that the governmental body with which you are deemed to have been associated upon termination of your employment with the B C is the B C in its entirety. For the first year following termination of your employment with the B C, Section 1103(g) of the Ethics Act would appply and restrict "representation" of a "person" —including but not limited to yourself/your I —before the B C. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you/your I from seeking the Company's assistance with regard to becoming eligible to bid on contracts for projects related to the B's J subject to the condition that in so doing, you would not engage in prohibited representation before the B C 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. Any such appeal must be in writing and must be actuaHZ received at the Commission within thin (30) clays of the date o this vice pursuant to 51 Pa. Code l 13.2(yh). 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, 56�M- Robin M. Hittie Chief Counsel