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HomeMy WebLinkAbout01-591 MessnerDavid S. Messner 809 Sprint Lane Camp Hill, PA 1 701 1 -8372 Dear Mr. Messner: ADVICE OF COUNSEL September 10, 2001 01 -591 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 1103(i); Targeted Development Division Chief; Office of Community Development; Department of Community and Economic Development. This responds to your letter of August 5, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any restrictions upon employment of a Targeted Development Division Chief following termination of service with the Department of Community and Economic Development ( "DCED "). Facts: You are currently employed as the Targeted Development Division Chief within the Office of Community Development of DCED. You plan to retire from your position on January 4, 2002. You have submitted copies of your job description and organizational chart, which documents are incorporated herein by reference. You have submitted facts which may be fairly summarized as follows. The Targeted Development Division ( "Division ") reviews and makes funding recommendations concerning: (1) applications for planning and administrative grants to local governments, redevelopment authorities, and local economic development organizations; and (2) applications for loan capital to be loaned to businesses. With regard to the latter, the Division does not recommend any loans per se" because the loan agreements are executed between local grantees and businesses. All funds flowing through the Division are state funds. You and your staff make recommendations regarding approval of the aforesaid applications. Staff are not required to obtain your approval for their recommendations, but they are expected to keep you informed of same. The recommendations of you and your staff are reviewed in succession by the Director of the Office of Community Development, Executive Director of the Center for Community Building, and finally, the Deputy Secretary for Community Affairs and Development. The approval of the Deputy Secretary constitutes the approval of DCED. Messner, 01 -591 September 10, 2001 Page 2 You state that you do not receive or act upon any grant applications from consulting firms because such firms are not eligible grantees for the funds for which you are responsible. As for local economic development agencies, you state that you have never funded such agencies. However ou have assisted in assembling other financing packages for projects in which you did recommend funding approval of funds for which you are responsible. Specifically, the funds for which you recommended approval were contracted to an operating agency with which the local development agency was working. You state that approval of your funding recommendation did not result in any of the funds for which you are responsible being placed into any local development agency's account. Based upon the above facts, you ask: 1. To whom you are and are not permitted to speak, and for what purposes and lengths of time; 2. Whether the Ethics Act would restrict or prohibit your acceptance of employment with any consulting firms in your field, and if so, for what lengths of time; and 3. Whether the Ethics Act would restrict or prohibit your acceptance of employment with any local economic development agencies, and if so, for what lengths of time. 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 the Targeted Development Division Chief within the Office of Community Development of the Department of Community and Economic Development ( "DCED "), you would be considered a public employee and an "executive -level State 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 and a former executive -level State employee subject to the restrictions of 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 Messner, 01 -591 September 10, 2001 Page 3 above prohibition shall be invoked only when the recruitment 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 No. 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 a particular employer -- including a consulting firm or a local economic development agency -- provided and conditioned upon the assumptions that you did not actively participate in recruiting the employer to Pennsylvania, and that you did not actively participate in recruiting or inducing the 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 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 public 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 Messner, 01 -591 September 10, 2001 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 /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 /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 No. 90 -006; Sharp, Opinion 90- 009 -R. Upon retiring from Commonwealth service, the governmental body with which you will have been associated will be DCED in its entirety, including, but not limited to, the Office of Community Development. Therefore, for the first year after termination of your service with DCED, Section 1103(g) of the Ethics Act will apply and restrict "representation" of "persons" before DCED. Having set forth the above general principles, your specific inquiries shall now be addressed. Messner, 01 -591 September 10, 2001 Page 5 Your first specific inquiry asks to whom you are and are not permitted to speak, and for what purposes and lengths of time. Although the inquiry is somewhat unclear, it would appear that it pertains to prohibited representation and has been fully addressed above. Your second and third inquiries, involving restrictions or prohibitions as to your acceptance of employment with consulting firms in your field or local economic development agencies, have likewise been addressed above. The fact that a prospective employer would be a consulting firm or a local economic development agency would not alter the application of Section 1103(g) or Section 1103(i) as noted above. However, based upon the submitted facts, this Advice has addressed the applicability of Sections 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 rohibited 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 /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /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 Governor's Code of Conduct. Conclusion: Upon termination of service as the Targeted Development Division Chief within the Office of Community Development of the Department of Community and Economic Development ( "DCED "), you would become a former public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1103(g), (i). 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 a particular employer, including a consulting firm or a local economic development agency, provided and conditioned upon the assumptions that you did not actively participate in recruiting the employer to Pennsylvania, and that you did not actively participate in recruiting or inducing the 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 employer. With regard to Section 1103(g), the restrictions as outlined above must be followed. The former governmental body would be the Department of Community and Economic Development. 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. This letter is a public record and will be made available as such. Messner, 01 -591 September 10, 2001 Page 6 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