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HomeMy WebLinkAbout01-520 McLaughlinRobert L. McLaughlin, Esquire 431 Center Street Ashland, PA 17921 ADVICE OF COUNSEL March 1, 2001 01 -520 Re: Former Public Employee; Section 1103(g); Senior Counsel; Board of Claims; Contract; Member, Hearing Panel. Dear Mr. McLaughlin: This responds to your letter of January 24, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seq. ("Ethics Act "), presents any restrictions upon on employment of a Senior Counsel following termination of service with the Board Claims, particularly with regard to contracting with his former governmental body to serve as a member of a panel hearing cases. Facts: You have served as Senior Counsel to the Board of Claims for the past eleven and one half years. Prior to accepting that position, you served on the Board's Panel hearing cases and making recommendations to the Board of Claims. Such service on the panel was pursuant to a service purchase contract between you and the Board. Following your resignation from the Board of Claims on January 26, 2001, you desire to again enter into a service purchase contract with the Board to once again serve as a Panel Member on a per diem basis. You do not intend to practice law before the Board of Claims; you simply intend to serve as a Panel Member. You ask whether the Ethics Act would permit you to do so. 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. McLaughlin, 01 -520 March 1, 2001 Page 2 As Senior Counsel to the Board of Claims, 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. 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 ": §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 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 McLaughlin, 01 -520 March 1, 2001 Page 3 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 governmental body with which you would be associated upon termination of public service is the Board of Claims in its entirety. Therefore, for the first year after termination of service with the Board of Claims, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Board of Claims. Having set forth the general restrictions of Section 1103(g) of the Ethics Act, your specific inquiry shall now be addressed. You ask whether you may, following your resignation from the Board of Claims, serve as a member of a Hearing Panel pursuant to a service purchase contract with the Board of Claims. You are advised that such an arrangement would be prohibited by Section 1103(g) of the Ethics Act during the first year following your resignation. With few exceptions, contractual arrangements between a former public official/ public employee and the former governmental body are prohibited by Section 1103(g). Exceptions include where: (1) the restrictions do not apply because a former public official /public employee is acting as an impartial arbiter between the former governmental body and others, and hence is not representing himself before his former governmental body, Confidential Opinion, 92 -005; and (2) where the payments to the former public official /public employee are limited to expenses incurred, Confidential Opinion, 97 -012. McLaughlin, 01 -520 March 1, 2001 Page 4 In the instant matter, no exception would apply, and Section 1103(g) would, for the first year following your resignation from the Board of Claims, preclude the provision of the proposed services to the Board of Claims pursuant to a service purchase contract. See, e.q. Confidential Opinion, 93 -005 (Public employee could not terminate public service and then contract to provide those same services to his former governmental body within one year of termination of service); Confidential Opinion, 97- 008 (Former public official was prohibited from entering into a consulting contract for compensation with his former governmental body within one year of termination of service to provide services as a compensated Special Master and Hearing Examiner). As noted above, the restrictions of Section 1103(g) would apply for the first year following your resignation from the Board of Claims. 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 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. Conclusion: As Senior Counsel with the Board of Claims, you would be considered a "public employee" subject to the provisions of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seq. ( "Ethics Act "). Upon termination of service with the Board of Claims, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the Board of Claims in its entirety. Section 1103(g) of the Ethics Act would prohibit you from serving on a Panel pursuant to a service purchase contract with the Board of Claims during the first year following your resignation from the Board of Claims. The restrictions as to representation outlined above must be 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. 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. McLaughlin, 01 -520 March 1, 2001 Page 5 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