Loading...
HomeMy WebLinkAbout01-572 ConfidentialADVICE OF COUNSEL July 3, 2001 01 -572 Re: Former Public Employee; Section 1103(g); A; B Office; C Department. This responds to your letter of June 5, 2001, 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 in the B Office following termination of service with the C Department. Facts: You are currently employed as an A in the B Office at the C Department. You have submitted a job description and an organization chart, which are incorporated herein by reference. As an A, you perform policy analysis and program development on a broad range of D and E issues. You have primarily been assigned to the areas of F, G, H, and I. Your duties include identifying key policy issues, providing recommendations to the J and K, and developing agency policy guidelines and budget priorities. Your duties also include analyzing federal and state legislation and program area trends and best practices. You are required to represent the C Department and K on task forces, boards, commissions, and committees and act as a spokesperson on policy issues. As a result of your assignment to the areas of H and I, you have been involved in a number of activities with the C Department's H work groups. In April 2001, you became aware of an opening at the L for the position of M. After expressing interest in the position, you were interviewed and given a tentative offer. You state that the L is a division of the N and that all employees thereof are bound by a non - lobbying provision. You have submitted a copy of the organization chart for the N, which is incorporated herein by reference. You have also submitted a job description for the position of M and an organization chart for the L, which documents are incorporated herein by reference. You state that the position of M exists by virtue of a contract between the L and the 0 within the C Department. After receiving funds from the federal P Office to operate a Q Project, the 0 chose to contract this function out to the L. You state that the administrator of this contract is the L's Director. Confidential Advice, 01 -572 July 3, 2001 Page 2 The duties of M include furthering the goals of the Q Project by promoting integrated and comprehensive services for R in both H and S programs. The work of the Q Project is directed by a steering committee chaired by the T of the 0 and composed of state officials and community representatives. In order to fulfill the required job duties, the M must interact with the C Department staff, S and H Communities, and the U. Because the steering committee directs the work of the M, C Department staff initiates all interaction between the M and the C Department. Given the foregoing facts, you ask whether your acceptance of the position would contravene any ethics standards. 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 A in the B Office at the C Department, 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 ": §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 Confidential Advice, 01 -572 July 3, 2001 Page 3 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 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 Confidential Advice, 01 -572 July 3, 2001 Page 4 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 would be the C Department in its entirety. Therefore, for the first year after termination of service with the C Department, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the C Department. The restrictions of Section 1103(g) would apply regardless of whether your new employer would be another governmental body or a non - governmental /private body. See, Ledebur, supra. As for your possible employment as the M for the L, Section 1103(g) would not prohibit you from accepting such a position. However, you could not "represent" the L before the C Department during the one -year period of restricted activity. As a practical matter, it would appear to be impossible for you to perform the functions of the M for the L without transgressing Section 1103(g) of the Ethics Act. As the Commission held in Stanisic, supra: We similarly conclude, as did the Advice of Counsel, that during the first year following termination of your employment with PennDOT, it would be impossible as a practical matter for you to perform the functions of a Construction Inspector working for a consulting firm on PennDOT project(s) without transgressing Section 3(g). In performing inspections of such project(s), you would be acting on behalf of your new employer and would necessarily engage in prohibited representation before your former governmental body, PennDOT. See, Long, Opinion No. 97 -010. Id. at 5. Because you, in your new position, would be interacting with your former governmental body on behalf of the L, you would be "representing' the L before the C Department in contravention of Section 1103(g) of the Ethics Act. As the Commission noted in Shay, Opinion 91 -012: This Commission has long recognized that the Legislative intent in promulgating Section 3(g) of the Ethics Law was to protect the public trust, such that a public official /employee must act consistently with the public trust and upon leaving public service, may not utilize his association with the public sector, officials or employees to secure treatment or benefits for himself or his new employer that may only obtainable because of his association with his former governmental body. Id. at 3. 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 Confidential Advice, 01 -572 July 3, 2001 Page 5 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 V. Conclusion: As an A in the B Office at the C Department, 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 C Department, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the C Department 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 13.2(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