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HomeMy WebLinkAbout02-514 DellickerKevin M. Dellicker Special Assistant to the Governor for Technology Initiatives Office of the Governor 506 Finance Building Harrisburg, PA 17120 ADVICE OF COUNSEL February 7, 2002 02 -514 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 1103(i); Special Assistant to the Governor for Technology Initiatives; Office of the Governor. Dear Mr. Dellicker: This responds to your letter of January 8, 2002, 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 Special Assistant to the Governor for Technology Initiatives following termination of service with the Office of the Governor. Facts: You currently serve as Special Assistant to the Governor for Technology I nitiatives in the Office of the Governor. You report to Tim McNulty ( "McNulty "), the Deputy Chief of Staff to Governor Schweiker for technology and workforce development initiatives. McNulty's position was newly created in the spring of 2001 to deal exclusively with technology- related issues and you were hired in May of 2001 as his assistant. While there is no official job description for your position, you state that your job duties are comparable to the duties of other special assistants in the Governor's Office. You have prepared an unofficial job description, which you state was accepted by McNulty and other authorities in the Governor's Office. The job description provides that the Special Assistant to the Governor for Technology Initiatives shall "assist the Deputy Chief of Staff for Technology Initiatives and the governor in creating partnerships, developing policy and communicating the strategy for improving Pennsylvanian's [sic] quality of life through technology development.' You have also submitted a copy of your resume which is incorporated herein by reference. You note that McNulty's new responsibility of developing workforce issues was added to his job description after Governor Schweiker took office and while you were away for seven weeks on military leave. You have not been asked to contribute Dellicker, 02 -514 February 7, 2002 Page 2 significantly to workforce development; hence, you have continued to focus on technology - related issues. As Special Assistant to the Governor for Technology Initiatives, you have worked most closely with other employees in the Governor's Office, particularly employees in the Policy Office and the Press Office. You worked with the Policy Office in leading the effort to increase Pennsylvanians' access to the high speed Internet, and you worked with the Press Office in leading the effort to develop a communications strategy for technology initiatives. Both of these projects involved outreach and meetings with the Department of Community and Economic Development, the Department of Education, and the Office of Administration, albeit on a somewhat limited basis. Other significant issues and projects which you have been involved in include: working on various telecommunications - related issues, such as the wireless telephone emergency system and Internet security items; supervising an intern on a telemedicine project; and participating in the budget development process, especially as it relates to tax policy affecting technology companies. In addition, you continue to advise the Office of Administration on the development of PA Open For Business, a business -to- government Internet portal. You state that your decision - making authority as to the above has been limited to making recommendations to your boss. You further state that you are not directly or indirectly responsible for overseeing any state agency functions or personnel. You maintain that in your current position, your relationship with state agencies has been limited to acting as a facilitator to induce the agencies to work together on projects that overlap agency boundaries. You ask for guidance as to any future employment opportunities outside of State government, given that such employment may involve contacts with State government agencies. 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 Special Assistant to the Governor for Technology Initiatives in the Office of the Governor, you would be considered a public official /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 official /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 Dellicker, 02 -514 February 7, 2002 Page 3 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 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 new employer provided and conditioned upon the assumptions that you did not actively participate in recruiting the new employer to Pennsylvania, and that you did not actively participate in recruiting or inducing the new 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 new 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. Dellicker, 02 -514 February 7, 2002 Page 4 "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 /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. Dellicker, 02 -514 February 7, 2002 Page 5 The governmental body with which you would be associated upon termination of public service is the Office of the Governor in its entirety which includes but is not limited to the Governor's Executive Offices, the Office of Administration, and the Budget Office. Therefore, for the first year after termination of your service with the Office of the Governor, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Office of the Governor. Having set forth the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act, you are advised that although the Ethics Act would not preclude you from accepting employment outside of State government, it would restrict your conduct in your new position to the extent that such conduct would constitute prohibited representation before the Office of the Governor. Based upon the facts which have been submitted, 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 Special Assistant to the Governor for Technology Initiatives in the Office of the Governor, you would become a former public official /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. 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 new employer based upon the assumptions that you did not actively participate in recruiting the new employer to Pennsylvania, and that you did not actively participate in recruiting or inducing the new 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. With regard to Section 1103(g), the restrictions as outlined above must be followed. The former governmental body would be the Office of the Governor in its entirety which includes but is not limited to the Governor's Executive Offices, the Office of Administration, and the Budget Office. 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. Dellicker, 02 -514 February 7, 2002 Page 6 This 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