Loading...
HomeMy WebLinkAbout02-001 ConfidentialI. ISSUE: OPINION 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: February 4, 2002 DATE MAILED: February 15, 2002 02 -001 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 11030); A to the B; C; D. This responds to your letter of November 15, 2001, by which you requested a confidential advisory from the State Ethics Commission. Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1101 et seq., presents any restrictions upon employment of an A to the B and following termination of service with the D. II. FACTUAL BASIS FOR DETERMINATION: As the former A to the B and C within the D, you seek a confidential advisory from this Commission regarding the post - employment restrictions of the Ethics Act. You state that you resigned from the aforesaid Commonwealth positions on [date]. You presently do not hold any appointed post in State government. However, you are still an E at the Harrisburg branch of F, which is a state — related education institution. In your former positions, you were responsible for the G of the B's H. You also served as a key general adviser to I and J. You were a member of the B's K, which served as the B's primary internal deliberative body and discussed and debated most major initiatives and problems of the H. Finally, as C, you shared authority with the respective Ls over the Ms, Ns and Os in the Ps. Confidential Opinion 02 -001 February 15, 2002 Page 2 On [date], you began working as President of Private Entity Q, a G division of Private Entity R, which is an S and G agency based in Harrisburg. You are now considering entering into a contract to provide G services to Private Entity T, the largest U in the United States. By way of background, you proffer the following facts. In [month and year] Private Entity T was awarded a [dollar amount] contract by State Department V to study Political Subdivision W. On [date], J publicly released two items: (1 Private Entity T's report, which presented options for resolving Political Subdivision VI's X; and (2) J's own plan, which relied heavily upon Private Entity T's report. J's plan proposes a Y of Political Subdivision W. You have outlined how that would occur under applicable law. Political Subdivision W would be run by a Z. [Number] of the [number] members of the Z would be appointed by J, and [number] would be appointed by AA. All appointments to the Z would be without Senate confirmation. J's plan further proposes the hiring of a private entity to run Political Subdivision W's BB and [number] of the CC. The plan does not specifically recommend Private Entity T or any other particular private entity, and you note that such hiring decision would rest exclusively with the Z, which has yet to be invoked or formed. However J has publicly acknowledged that if he would proceed with a Y, he would recommend that the Z hire Private Entity T to run the BB and operate [number] of the CC. To your knowledge, Private Entity T has never received or been promised a grant or loan from the Commonwealth, as all of its monies are derived from services rendered. You state that you had no participation in the identification of Private Entity T for the aforesaid Political Subdivision W study, and you had no contact with Private Entity T prior to its involvement in the project. Finally, you state that you did participate in numerous meetings on the Private Entity T study in [months] of (year], as one of the advisors assigned by I and J to work on the Political Subdivision W matter. Many of those meetings included officials from Private Entity T. You pose the following specific inquiries. First, you ask whether the Ethics Act — particularly Sections 1103(g) and 11030) of the Ethics Act —would prohibit you from entering into a contract to provide G services to Private Entity T. Second, while you acknowledge that the Ethics Act would prohibit you from "representing" Private Entity T before your former governmental body during the first year following your termination of Commonwealth service, you ask what would constitute your 'former governmental body" and whether it would include the Z, if formed. Your third inquiry is as to the meaning of the term "representation." In this regard, you state that during the first year following your resignation from Commonwealth service, you should not and would not represent Private Entity T if Private Entity T would seek any specific contracts or other considerations from your Confidential Opinion 02 -001 February 15, 2002 Page 3 former governmental body. However, you specifically ask whether the Ethics Act would prohibit you from: (1) briefing officials in your former governmental body on G initiatives that Private Entity T might be undertaking in DD; (2) seeking or receiving input from officials in your former governmental body regarding a Private Entity T G initiative or problem; or (3) informing officials in your former governmental body as to what Private Entity T is doing on a G matter in DD. By letter dated January 14, 2002, you were notified of the date, time and location of the executive meeting at which your request would be considered. III. DISCUSSION: It is initial) 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 t e 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. In your former capacities as A to the B and C within the D, 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 became a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 11030) of the Ethics Act. Section 11030) restricts former executive -level State employees as follows: Section 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 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. § 11030). Section 11030) 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 11030) 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 02 -001 February 15, 2002 Page 4 Confidential Opinion, 94 -011. However, Section 1103(i) would not restrict you from entering into a contract to provide G services to Private Entity T provided and conditioned upon the assumptions that you did not actively participate in recruiting Private Entity T to Pennsylvania, and that you did not actively participate in recruiting or inducing Private Entity T 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 Private Entity T. Unlike Section 11030), 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 ": Section 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: Section 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; Confidential Opinion 02 -001 February 15, 2002 Page 5 (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, 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. The governmental body with which you are considered to have been associated upon termination of public service, hereinafter referred to as "your former governmental body," is D in its entirety. Therefore, for the first year following termination of your service with the Commonwealth of Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons," including but not limited to Private Entity apply CQ and Private Entity T, before your former governmental body as identified above. Having set forth the restrictions of Sections 1103(g) and 11030) of the Ethics Act and identified your former governmental body, your specific inquiries shall be addressed. Your first specific inquiry has been fully addressed above. In response to your second specific inquiry, your former governmental body is as identified above. It would not include a Z formed to run Political Subdivision W. Confidential Opinion 02 -001 February 15, 2002 Page 6 As for your third specific inquiry, the meaning of the term "representation" is likewise set forth and addressed above. You are further advised that during the first year following termination of your Commonwealth service, the Ethics Act would prohibit you from: (1) briefing officials in your former governmental body on G initiatives that Private Entity T might be undertaking in DD; (2) seeking or receiving input from officials in your former governmental body regarding a Private Entity T G initiative or problem; or (3) informing officials in your former governmental body as to what Private Entity T is doing on a G matter in DD. All such activities would constitute "representation" before your former governmental body and would be prohibited during the one -year period of applicability of Section 1103(g) of the Ethics Act. Based upon the facts which have been submitted, this Advice has addressed the applicability of Sections 1103(g) and 11030) 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 /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 EE. IV. CONCLUSION: Upon termination of Commonwealth service, a former A to the B and C within the D 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 11030) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1103(g), (1). Under Section 11030) of the Ethics Act, such individual would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a private entity conditioned upon the assumptions that he did not actively participate in recruiting the entity to Pennsylvania, and that he did not actively participate in recruiting or inducing the entity 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 would have to be followed. The governmental body with which such individual would be considered to have been associated upon termination of public service, hereinafter referred to as "the former governmental body," would be D in its entirety. The former governmental body would not include a Z formed to run Political Subdivision W. For the first year following termination of the aforesaid service with the Commonwealth of Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons," including but not limited to an employer or client, before the former governmental body as identified above. Act. The propriety of the proposed conduct has only been addressed under the Ethics 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. Confidential Opinion 02 -001 February 15, 2002 Page 7 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 Commissioner Susan Mosites Bicket dissents as to the delineation of the former governmental body as D and not also the Ps as to which the requestor shared authority with the respective Ls over Ms, Ns and Os.