Loading...
HomeMy WebLinkAbout01-563 NeuhardMegan Neuhard 4983 Saddlebrook Drive Harrisburg, PA 17112 Re: Former Public Employee; Section 1103(g); Director of Communications; Department of Community and Economic Development. Dear Ms. Neuhard: ADVICE OF COUNSEL June 7, 2001 01 -563 This responds to your letter of May 8, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of a Director of Communications following termination of service with the Department of Community and Economic Development ( "DCED "). Facts: From October 1996 through May 1999, you served as Director of Communications and Press Secretary for the Department of Health ( "DOH "). Since May 1999, you have served as the Director of Communications for the Pennsylvania Department of Community and Economic Development ( "DCED "). You have also served as a member of DCED's Executive Committee. In your roles as Director of Communications and Press Secretary for DOH and Director of Communications for DCED, you represented DOH and DCED respectively, on all public communications matters and served as public spokesperson and communications liaison with the Governor's Press Secretary. During your tenure at DOH, you were involved in the decision making process for a large advertising and marketing contract that was awarded for the period May 1, 1998 through June 30, 2000. You oversaw the request for proposal process and managed the contract after the award. Although the contract was renewed in 2000, you were not involved in the renewal process. You state that since the contract was a contract for services rather than a grant or a loan, it had neither the purpose nor the effect of inducing or encouraging the contractor to locate or expand its operations within the Commonwealth. You state that you have had no review, oversight, or decision - making responsibility or authority for any of DCED's grant or loan programs or for any other substantive matters within that agency. You further state that you have had no Neuhard, 01 -563 June 7, 2001 Page 2 programmatic responsibility for any of the Commonwealth authorities that receive administrative support from DCED, including the Pennsylvania Industrial Development Authority, the Pennsylvania Economic Development Financing Authority, and the Pennsylvania Minority Business Development Authority. You will be leaving Commonwealth employment in a few weeks to develop your own public relations and marketing consulting firm. You understand that you are precluded from appearing before DCED and representing any person or entity, including yourself, before DCED for a period of one year after you terminate employment with DCED. You state that under no circumstances will you appear before DCED on behalf of yourself or others for a period of at least one year after you terminate employment with DCED. You seek guidance as to the following issues: 1. Whether you may perform work as an independent contractor for the advertising firm that received the contract from DOH in May 1998; 2. Whether you may provide marketing and public relations services to organizations that actually receive budget money through a state line item from DCED where you have no oversight authority over these funds; 3. Whether you may provide marketing and public relations services to a firm that lobbies DCED or from any other state agency" where you would not be lobbying for such firm or representing "them" before DCED; 4. Whether you may provide marketing and public relations services to a firm that has a contractual relationship with DCED; and 5. Whether you may provide marketing and public relations services to companies that have received grants or loans from DCED where you have had no programmatic responsibility or involvement in the application process or in the award of such grants or loans. 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 Director of Communications for the Department of Community and Economic Development ( "DCED "), 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 Neuhard, 01 -563 June 7, 2001 Page 3 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 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 public Neuhard, 01 -563 June 7, 2001 Page 4 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 DCED in its entirety. Therefore, for the first year after termination of service with DCED, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DCED. Having established the above, your specific inquiries shall now be addressed. With regard to questions 1 through 5, you are advised that the Ethics Act would not prohibit you from providing marketing and public relations services as an independent contractor or otherwise to a firm /organization /company that: 1) currently has or has had a contractual relationship with DOH or DCED; 2) receives or has received state funding through a state line item, grant or loan; or 3) lobbies state agencies, including DCED, to the extent that in providing such services, you would not be engaging in prohibited representation before DCED during the one -year period of restricted activity. 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 Director of Communications for the Pennsylvania Department of Community and Economic Development ( "DCED "), you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act"), Act 93 of 1998, Chapter 11. Upon termination of service with DCED, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is DCED in its entirety. Neuhard, 01 -563 June 7, 2001 Page 5 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. 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