Loading...
HomeMy WebLinkAbout02-548 ConfidentialADVICE OF COUNSEL April 5, 2002 02 -548 Re: Former Public Employee; Section 1103(g); A; B Department; C Office; D Bureau. This responds to your letter of March 8, 2002, 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 following termination of service with the B Department, C Office, D Bureau. Facts: You are employed as an A for the B Department, C Office, D Bureau. You have submitted a document identifying your essential job functions and an organization chart for the B Department, which documents are incorporated herein by reference. Your current job responsibilities include conducting examinations and preparing reports on the E. You state that the reports are used by the F to help regulate the G industry in Pennsylvania. You are contemplating employment with a corporation, which you state is not a governmental body. You have submitted a list detailing your responsibilities for the new position, which is also incorporated herein by reference. Given that your new job responsibilities would include assisting H, you opine that Section 1103(g) of the Ethics Act would prohibit you from performing these functions during the one year period for the B Department, but not for other governmental bodies. You further opine that you would be prohibited from making personal appearances, negotiating, lobbying or submitting contract proposals that are either signed by you or that contain your name to the B Department. After referencing the phrase not limited to" in the definition of representation, you inquire as to whether any documentation generated by audit reports, bank examinations, accounts payable recovery services, statutory consultations, and assistance to the federal government or other state G departments, if obtained by the B Department, would constitute representation. You seek an advisory as to whether you would be engaging in representation before the B Department in any of the following hypothetical situations. Confidential Advice, 02 -548 April 5, 2002 Page 2 1. As a consultant/accountant for a business entity other than a G company, you perform services for a G department of another state. A report containing your name or signature is sent to or requested by the B Department. 2. As a consultant/accountant for a business entity other than a G company, you perform services for a G company that conducts business in the Commonwealth of Pennsylvania. A report containing your name or signature is obtained by the B Department. 3. As a consultant/accountant for a business entity other than a G company, you conduct an audit of a G company. A report containing your name or signature could potentially be filed in any state in which the company conducts business, but would primarily be used by the state of domicile, which in this case, would not be the Commonwealth of Pennsylvania. You ask whether your conduct in any of the above situations would constitute prohibited representation. Based upon prior opinions and Confidential Advice of Counsel, 01 -517 which was previously issued to you, you opine that such conduct would not constitute representation because the "primary audience" would either be a G company or a governmental body other than the B Department. 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 for the B Department, C Office, D Bureau, 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. Confidential Advice, 02 -548 April 5, 2002 Page 3 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 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 former ublic official /public employee may not be identified on documents submitted to the former governmental body. The former public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once Confidential Advice, 02 -548 April 5, 2002 Page 4 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 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you would be associated upon termination of public service would be the B Department in its entirety including, but not limited to, the C Office, D Bureau. Therefore, for the first year after termination of service with the B Department, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the B Department. 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 employment as a consultant /accountant for a business entity other than a G company, to the extent that your activities would involve prohibited "representation" as outlined above, you could not perform such activities without transgressing Section 1103(g) of the Ethics Act. With regard to the questions you have posed, the provision of services to a G department of another state or to a G company within or outside the Commonwealth of Pennsylvania, and the subsequent submission of a report containing your name or signature to the B Department, would not constitute prohibited representation under Section 1103(g) of the Ethics Act conditioned upon the assumption that there would be no affirmative act on your part as to the submission of the report to your former governmental body. See, Stephens v. State Ethics Commission, 132 Pa. Commw. 71, 571 A.2d 1120 (1990)Tonfidential Advice of Counsel, 01 -517. 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 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 A for the B Department, C Office, D Bureau, 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 B Department, you would become a "former public employee" subject to Section 1103(g) Confidential Advice, 02 -548 April 5, 2002 Page 5 of the Ethics Act. The former governmental body would be the B Department in its entirety including, but not limited to the C Office, D Bureau. 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. 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