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HomeMy WebLinkAbout01-500 ConfidentialRe: Former Public Employee; Section 1103(g); Executive -Level State Employee; Section 1103(i); A; B; C Office; D; E; F Office. Dear Sir or Madam: ADVICE OF COUNSEL January 2, 2001 01 -500 This responds to your letter of November 21, 2000, by which you requested a 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 following termination of service with the B in the C Office where, immediately prior to his current position, he served as the D for the E in the F Office. Facts: You were formerly the D for the E in the F Office, having served in that capacity for 2 1/2 years. You state that as the D, you reported directly to the G, with no direct reports or budgetary authority. You also state that your primary roles and responsibilities included assisting, advising and representing the G regarding various H initiatives. On September 25, 2000, you assumed your current position as an A for the B in the C Office. You are involved with !formulation for J. You report to the K and have no direct reports or budgetary authority. You state that your position is a "level 99" position that does not require a formal job description. You have submitted a copy of a general job description, which is incorporated herein by reference. Some of your job duties include the following: 1. Managing and reviewing 1 initiatives across diverse governmental programs that apply to a specific! area, such as L; 2. Managing M initiatives and 1 issues that impact on a wide segment of the citizenry; 3. Providing direct technical assistance on 1 initiatives to the N, the N's 0 or P, and the N's Q, agency heads, and agency 1 managers; 4. Coordinating the overall I development, analysis and evaluation work within specific! areas; Confidential Advice, 01 -500 January 2, 2000 Page 2 5. Advising and working with agency R's to ensure consistency across the N's program and I initiatives; 6. Acting as one of the primary liaisons to the N and the N's 0; 7. Establishing interagency I teams and directing the work of these teams to resolve complex I issues that span the functions of several executive agencies; 8. Making executive decisions within a specific I strategy and mediating I debates at the agency level and among the key functional areas of the C Office. You have received an offer of employment outside of state government. In your new position, you would be engaged in procurement consulting, which would involve rendering services and advice to companies doing business with state and local government. In particular ou would deal with organizations whose primary role would be to deliver S solutions. You seek an advisory as to the restrictions that would apply to you in your new position. 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an D and an A, you would be considered a "public employee." You would also be considered an "executive -level State employee." As a "public employee" and an "executive -level State employee," you would be 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" and a former executive -level State employee subject to Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: §1103. Restricted activities (i) Former executive -level employee. - -No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment Confidential Advice, 01 -500 January 2, 2000 Page 3 or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. §1103(i). Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of the new employer, rather than the new employer itself. See, Confidential Opinion 94 -011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for the new employer provided and conditioned upon the assumptions that you did not actively participate in recruiting the new employer to Pennsylvania, and that you did not actively participate in recruiting or inducing the new employer to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to the new employer. Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment. However, 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 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 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 Confidential Advice, 01 -500 January 2, 2000 Page 4 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 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 ublic 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 90 -006; Sharp, Opinion 90- 009 -R. The submitted facts indicate that you were employed as the D for the E in the F Office until September 25, 2000 when you assumed your current position as A for the B in the C Office. Based upon these facts, the governmental body with which you would be associated upon termination of public service would include the F Office in its entirety including, but not limited to, the E and the C Office including, but not limited to, the B. Confidential Advice, 01 -500 January 2, 2000 Page 5 As to the latter governmental body, you state that your job duties as an A include providing direct assistance to agency heads and agency H managers. However, you do not delineate the extent of your contacts with such other agencies. If the facts are such that you have had extensive involvement with one or more agencies other than the C Office, Section 1103(g) of the Ethics Act would apply and would restrict you from "representation" of "persons" before the C Office and any other Commonwealth agencies, depending upon the extent of your involvement with such agencies. Having identified your former governmental bodies, you are advised that the one - year period of restricted representation before the F Office would terminate on September 25, 2001. The period of restricted representation before the C Office and any other Commonwealth agency with which you would have had extensive involvement, would terminate one year after you would leave that governmental body. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) and 1103(i) only. It is expressly assumed that there has been no use of authority of office 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 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 T. Conclusion: As an D and an A, you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.CS. §1101 et seq. You would also be considered an "executive -level State employee," as defined in the Ethics Act. Upon termination of service with the F Office and the C Office, you would become a "former public employee" and a former executive -level State employee subject to Section 1103(g) and 1103(i) of the Ethics Act. Under Section 1103(i) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for your new employer, based upon the assumptions that you did not actively participate in recruiting your new employer to Pennsylvania, and that you did not actively participate in recruiting or inducing your new employer to open or expand a plant, facility, or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. With regard to Section 1103(g), the restrictions as outlined above must be followed. The governmental body with which you would be associated upon termination of public service would include the F Office in its entirety including, but not limited to, the E and the C Office including, but not limited to, the B as well as any other Commonwealth agencies with which you have had extensive involvement. The one -year period of restricted representation before the F Office would terminate on September 25, 2001. The period of restricted representation before the C Office and any other Commonwealth agency with which you would have had extensive involvement, would terminate one year after you would leave that governmental body. The propriety of the proposed conduct has only been addressed under the Ethics Act. Confidential Advice, 01 -500 January 2, 2000 Page 6 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 complaint of in reliance on the Advice given. The 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. Sincerely, Vincent J. Dopko Chief Counsel