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HomeMy WebLinkAbout01-006 ConfidentialOPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy DATE DECIDED: 8/23/01 DATE MAILED: 9/7/01 01 -006 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 1103(i); A; B; Appeal of Advice. This Opinion is issued in response to the appeal of Advice of Counsel, [number], which was issued on [date]. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of an A following termination of service with the B. II. FACTUAL BASIS FOR DETERMINATION: By letter dated [date], you appealed Advice of Counsel, [number] issued [date]. In your initial advisory request letter dated [date], you presented the following facts. Effective [date], you concluded your service with the Commonwealth as A for the B, a position you held since [date]. A copy of a job description for your former position and two organization charts were submitted and incorporated by reference in the Advice. They are likewise incorporated herein by reference. Your responsibilities as A were limited to matters involving policies and procedures in the B, primarily in the areas of C, D and E. In addition, you participated as an F of the G project, a team of inter- agency employees working to streamline the process of H in the Commonwealth. You state that the project management staff in the I, J, under the direction of the K, handled the procurement decisions and vendor selections for the G protect. You facilitated L of the M to establish N, develop 0 for the P to Q, ensure that the 0 adopted Confidential Opinion, 01 -006 September 7, 2001 Page 2 by the project were consistent with the 0 S by the I, and ensure that the project adhered to the T established by the project's U. The U consisted of the V. You state that you had no formal role on and were not a voting member of the U. You requested an advisory regarding your employment with W of X, Pennsylvania, where you anticipated working as a Y assisting clients with Z. You acknowledged that you would be prohibited from representing clients before the B for a period of one year. You anticipated that you would not be prohibited from becoming involved in matters that would directly impact G given your limited role in that project. Advice of Counsel, [number], concluded that in your former capacity as A for the B, you would be considered a public employee and an "executive -level State employee" subject to the Ethics Act. The Advice then outlined the restrictions that would apply to you as a former public employee and a former executive -level State employee for the first year following your termination of service with the Commonwealth. The Advice found that the governmental body with which you would be considered to have been associated upon termination of public service would be the B in its entirety and any other Commonwealth agency with which you would have had extensive involvement regarding the G project. In your letter of [date] by which you appealed Advice of Counsel, [number], you state that you disagree with the imposition of the restrictions with regard to agencies with which you would have had "extensive involvement," stating that the Advice establishes an unworkable standard that requires clarification as to what constitutes "extensive involvement." You contend that the "extensive involvement" standard subjects you to possible State Ethics Commission sanctions if your concept of "extensive involvement" differs from a subsequent interpretation by this Commission. You add that your efforts on behalf of the G initiative were merely those of interdepartmental project coordination. You state that you did not have a staff and therefore did not have the authority to hire, promote, transfer, discipline or otherwise affect any Commonwealth employees. You further state that the I made and implemented all procurement decisions; you did not develop statements of work, select the consultants or contractors, or sign contracts. You maintain that with the exception of the B, you were not a decision maker in any of the agencies that were part of the project. You offer the following additional facts /comments regarding your involvement with each of the agencies participating in G: 1. B — You agree that your activities should be restricted with regard to this agency. 2. AA, BB, CC, and DD — You did not participate in any internal meetings or conversations in any of these agencies. Your only contact was chairing monthly meetings attended by the M representatives from these agencies. 3. EE — Your only direct involvement with the agency was on one occasion when you attended a presentation by the FF and a representative from this agency's southwestern regional office regarding a complementary initiative they were piloting in the southwestern region. 4. GG and HH — Your only direct involvement with these agencies was on one occasion when you met with the executive leadership in each agency to outline the new timeline for completing a particular phase of the project. You did not assist in the agency's internal decision - making regarding how to comply with the project's direction. Your role was to outline the broad objectives to be met as defined by the project's U. Confidential Opinion, 01 -006 September 7, 2001 Page 3 5. I — You coordinated your activities with the project management staff in this agency. The project management staff was responsible for directing the day -to- day activities of G. In addition, you kept the II up to date on the project's progress. II was the chairperson of the project's U, which was responsible for the ultimate decision - making with regard to the project's direction. You argue that the "extensive involvement" standard, in addition to being unworkable, is unfair in light of prior Commission opinions. In this regard, you state that in the recent past, this Commission has not restricted the Governor's Secretary for Legislative Affairs from representing persons before various agencies, even though the Secretary is responsible for coordinating all legislative activities through a dedicated staff person in each agency. You contend that under the "extensive involvement" standard, a departing chief of staff to the majority leader of the Senate would be precluded from having any contact with the leadership in the House of Representatives upon his /her departure from State government due to the extensive involvement between Senate and House leadership staffs. It is your understanding, however, that this Commission has not taken such a position with regard to individuals who have left the Senate and House, notwithstanding the fact that such individuals constantly deal with significant policy, legislative and fiscal issues with each other on a routine basis. You maintain that compared to House and Senate leadership staff, who constantly interact with each other, you had much less involvement and impact in the G project. You assert that while you were involved in coordinating the G project, you were not extensively involved in the decision - making, procurement, or personnel matters in any of the respective agencies that participated in the project. Hence, you argue that this Commission should modify or overrule Advice of Counsel, [numbed. You suggest that this Commission take either of the following courses of action: A. Determine that your restriction under Section 1103(g) should be defined as a restriction against dealing with the above - referenced Commonwealth agencies on the G project; or B. Review the additional information contained herein and determine that your involvement with each agency, with the exception of the B does not constitute "extensive involvement" under the Chief Counsel's letter. You state that in today's government, many agency employees are called upon to serve on cross - agency task forces and working groups. Each representative brings valuable expertise to the group, but does not exercise any control or authority over other agency representatives on such work groups. You argue that the "extensive involvement" standard, if adopted by this Commission, would be very difficult to enforce and would have a chilling effect on virtually every senior government official's willingness to serve on multi- agency work groups. By letter dated July 25, 2001, you were notified of the date, time and location of the executive session at which your appeal was to be considered. At the executive session on August 23, 2001, JJ, Managing Shareholder of the Harrisburg office of W, appeared and provided the following additional information and arguments on your behalf. As Chairperson of the G project, an inter - agency work group, your authority was limited to your position with the B; you could not vote or hire staff. Given that your contacts with other agencies participating in the G project were merely incidental, you seek clarification as to whether your contacts constitute "extensive involvement," thus preventing you from dealing with every agency that assigned a representative to that project. III. DISCUSSION: Confidential Opinion, 01 -006 September 7, 2001 Page 4 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, this 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. Although our review of this matter is de novo, we will limit our analysis to determining what your governmental body is, based upon the facts which you have submitted, since this is the only issue you raise in your appeal. Parenthetically, we note that you do not dispute the fact a former A for the B is a `former public employee" and a "former executive -level State employee" subject to the restrictions of Section 1103(g) and Section 1103(1) of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. We further note that Advice of Counsel, [number] accurately apprised you of the nature of the Section 1103(g) and Section 1103(i) restrictions and of certain important Commission precedents pertaining to those Sections. Accordingly, we adopt and incorporate herein by reference the Advice's recitation of the Section 1103(g) and Section 1103(i) restrictions. As to your former governmental body, you agree with the Advice's conclusion that Section 1103(g) of the Ethics Act would restrict "representation" of "persons" before the B. However, you disagree that the Section 1103(g) restrictions would also apply to any other Commonwealth agency with which you would have had "extensive involvement" regarding the G project, claiming that the Advice provides no direction as to what constitutes "extensive involvement." In reviewing the additional information that you have submitted regarding your involvement with each of the Commonwealth agencies participating in the G project, it would appear that you have had occasional contacts with the AA, BB, CC, DD, EE, GG, and HH. As for the I, you merely coordinated your activities with the project management staff of the I and kept the II up to date on the project's progress. Based upon these additional facts, we find that you were not "employed" by or `appointed" or "elected" to any of these Commonwealth agencies as per the definition of "governmental body with which a public official or public employee is or has been associated." Hence, based upon the facts which you have submitted, we conclude that the governmental body with which you have been associated upon termination of public service is the B in its entirety. The AA, BB, CC, DD, EE, GG, HH, and the I are not your former governmental bodies. Based upon all of the above, Advice of Counsel, [number], is modified. This Opinion has only addressed the facts and issues submitted by or on behalf of the requestor. 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. IV. CONCLUSION: A former A for the B is 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 "), Act 93 of 1998, Chapter 11. The restrictions as to Section 1103(g) and Section 1103(i) of the Ethics Act as set forth in Advice of Counsel, [number] are incorporated herein by reference. However, under the submitted facts, the former governmental body is the B in its entirety. The propriety of the proposed conduct has only been addressed under the Ethics Act. Advice of Counsel, [number] is modified. Confidential Opinion, 01 -006 September 7, 2001 Page 5 Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, Daneen E. Reese Chair