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HomeMy WebLinkAbout20-549 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL December 11, 2020 To the Requester: 20-549 This responds to your letter dated October 23, 2020 (postmarked October 24, 2020, received November 2, 2020), by which you requested a confidential advisory from Issue: Whether, as an A for a B of the C 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., such that upon termination of your Commonwealth employment, the restrictions of Section 1103(g) of the Ethics Act would be applicable to you. Facts: You request a confidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. At the time that you submitted your inquiry, you were employed as an A for a B of the C, namely Public Official D. You have submitted a copy of the Job Specifications for the position of A, which document is incorporated herein by reference. Per the submitted Job Specifications, your duties and responsibilities included the following: \[list of certain duties and responsibilities\]. Job Specifications, at 1. You asserted that you had little or no responsibility for taking or recommending official action of a non- Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102. You stated that the E where you worked does not contract and that any procurement would be for minimally valued and necessary \[type of items\]. You stated that you \[performed a certain function\] and that you did not administer, monitor, or determine the outcome of any grants or subsidies. You further stated that the E has no authority with respect to planning or zoning or inspecting, licensing, regulating or auditing any person. You stated that any contact you had with staff within the F or the G was limited to providing or obtaining information on behalf of Hs to assist them with issues or problems they had which needed to be addressed or rectified. You further stated that any interaction you had with Bs of the C other than Public Official D was limited to obtaining, gathering, or providing information for individuals and/or joint Hs. You stated that Public Official D would be retiring at \[a certain time\] and that as a result of his retirement, you would be separating from your Commonwealth employment Confidential Advice, 20-549 December 11, 2020 Page 2 on or about \[date\]. You stated that following termination of your Commonwealth employment, you would begin employment in a position with the I. You stated that in the aforesaid position, you will serve as a J for \[number\] Ks, including Pennsylvania. You stated that any contact you would need to have with a B or staff of the C in your position with the I would be for the limited purpose of L in order to M. You further stated that such contact would generally occur via email, letter, and telephone with minimal contact occurring in person. You additionally stated that while N may be supplied for any Os, appearances at Os to provide P would not take place. Based upon the above submitted facts, you seek guidance as to whether, as an A for Public Official D in the Ethics Act, such that upon termination of your Commonwealth employment, you would be subject to the post-employment restrictions of Section 1103(g) of the Ethics Act. In particular, you ask whether you would be prohibited from interacting with Bs and staff of the C for a period of one year following termination of your Commonwealth employment. 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 truthfully disclosed all of the material facts. The Ethics Act defines the term "public employee" as follows: § 1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe": Confidential Advice, 20-549 December 11, 2020 Page 3 (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary-treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. Confidential Advice, 20-549 December 11, 2020 Page 4 (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a "public employee" subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra. The first portion of the statut with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Confidential Advice, 20-549 December 11, 2020 Page 5 authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent to final decision-makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-005. In applying the objective test in the instant matter, the necessary conclusion is that in your capacity as an A for Public Official D, you would be considered a subject to the Ethics Act and the Regulations of the State Ethics Commission. Cf., \[cite\]. It is clear that as an A for Public Official D, you had the ability to take or recommend official action of a nonministerial nature with respect to subparagraph (5) within the Act, 65 Pa.C.S. § 1102. Specifically, the following duties and authority set forth in the Job Specifications would be : \[list of particular duties and responsibilities\]. The foregoing duties/authority would also meet the criteria for determining status as a public employee under the Regulations of the State Ethics Commission, specifically 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 whic § 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). y 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 Confidential Advice, 20-549 December 11, 2020 Page 6 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. 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, Opinion 95-007. 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. 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 mer 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, 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 90-006; Sharp, Opinion 90-009-R. The governmental body with which you would be deemed to have been associated upon termination of your Commonwealth employment would be the C in its entirety. Therefore, for the first year following termination of your Commonwealth employment, including but not limited to the Ibefore the C. Confidential Advice, 20-549 December 11, 2020 Page 7 During the one-year period of applicability of Section 1103(g) of the Ethics Act, you would be prohibited from interacting with B(s) or staff of the C in any manner that would your new employer, the I. Such prohibited interaction would include, but would not be limited to, having contact with B(s) or staff of the Cwhether by email, letter, telephone, or in personfor the purpose of L in order to M. 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: As an A for a B of the C, namely Public Official D, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your Commonwealth employment, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your Commonwealth employment would be the C in its entirety. For the first year following termination of your Commonwealth employment, including but not limited to your new employer, the Ibefore the C. The restrictions as to representation outlined above must be followed. During the one-year period of applicability of Section 1103(g) of the Ethics Act, you would be prohibited from interacting with B(s) or staff of the C in any manner that would I. Such prohibited interaction would include, but would not be limited to, having contact with B(s) or staff of the Cwhether by email, letter, telephone, or in personfor the purpose of L in order to M. Lastly, the propriety of the above 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 actually received at the Commission within thirty (30) days of the date of this Advice Confidential Advice, 20-549 December 11, 2020 Page 8 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, Robin M. Hittie Chief Counsel