HomeMy WebLinkAbout01-565 MonkRobert E. Monk
62 Fairfax Village North
Harrisburg, PA 17112
Dear Mr. Monk:
ADVICE OF COUNSEL
June 11, 2001
01 -565
Re: Former Public Employee; Section 1103(g); Applications Developer I; Department of
Education.
This responds to your letter of May 21, 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 an Applications Developer I following termination of
service with the Department of Education.
Facts: You are currently employed by the Department of Education as an
Applications Developer I. You have submitted your job description and organizational
chart, which are incorporated herein by reference.
On July 1, 2000, the Department of Education, through an open and public process,
entered into a large contract with Computer Aid Inc. ( "CAI "). You state that you have been
working with CAI on a peer level and have not been involved with any decision making
processes regarding any of the current contract proceedings or negotiations for year two.
You have recently been offered a position with a computer based consulting
company. Before you accept the offer, you wish to contact CAI to inquire whether that
company has any employment opportunities.
You ask whether you may leave the Department of Education to go work for CAI
where, as a CAI developer, you would work with the Department of Education. You further
ask whether you may become a CAI employee and work on accounts that do not involve
the Department of Education during the one year period of restricted activity and then work
on the Department of Education account after the one -year period expires. You add that
as a CAI employee, your salary would be substantially higher than the salary that you are
receiving as a Commonwealth employee.
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
Monk, 01 -565
June 11, 2001
Page 2
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 Applications Developer 1 for the Department of Education, 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 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" 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 ":
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:
65 Pa.C.S. §1102.
§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.
§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.
Monk, 01 -565
June 11, 2001
Page 3
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 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- 00harp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination of
public service is the Department of Education in its entirety. Therefore, for the first year
after termination of service with Department of Education, Section 1103(g) of the Ethics
Act would apply and restrict "representation" of "persons" before the Department of
Education.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that although the Ethics Act would not preclude you from accepting a position with
CAI or any other computer based consulting company, it would restrict your conduct in
your new position to the extent that such conduct would constitute prohibited
representation before the Department of Education during the one -year period of restricted
activity. Thus, if you would become an employee of CAI, you could not, for one year,
"represent" CAI before your former governmental body, the Department of Education, as
detailed above.
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
Monk, 01 -565
June 11, 2001
Page 4
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 an Applications Developer 1 for the Department of Education, 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 the
Department of Education, you would become a "former public employee" subject to
Section 1103(g) of the Ethics Act. The former governmental body is the Department of
Education in its entirety.
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 §13.20. 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