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HomeMy WebLinkAbout21-532 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL June 24, 2021 To the Requester: 21-532 This responds to your letter dated \[REDACTED\], by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues presented below: Issue: 1. Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon you with regard to performing work for a \[TYPE OF FIRM\] that does business with the Commonwealth following termination of your employment as a \[POSITION\] for \[STATE AGENCY 1\]? Brief Answer: Yes. During the first year following termination of your employment with \[STATE AGENCY 1\], Section 1103(g) of the Ethics Act would apply and restrict you from engaging in including but not limited to a new employer, such as a \[TYPE OF FIRM\] that does business with the Commonwealth before \[STATE AGENCY 1\]. 2. Whether the elements of a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), pertaining to conflict of interest, would be established if, following termination of your employment with \[STATE AGENCY 1\], you would accept employment with a \[TYPE OF FIRM\] (Firm) that you had interaction with while you were employed with \[STATE AGENCY 1\]? Brief Answer: The elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your entering into an employment relationship with the Firm subject to the conditions that: (1) you did not use the authority of your public position with Confidential Advice, 21-532 June 24, 2021 Page 2 \[STATE AGENCY 1\] in matter(s) pertaining to the Firm when you had an actual or reasonable expectation that you would enter into an employment arrangement with the Firm or would otherwise receive a private pecuniary benefit relating to the Firm; and (2) you did not otherwise use the authority of your public position with \[STATE AGENCY 1\] or confidential information received as a result of being in your public position with \[STATE AGENCY 1\] in furtherance of securing an employment arrangement with the Firm or other private pecuniary benefit relating to the Firm. Cf., Desmond, Opinion 08- 004. Facts: You request an advisory from the Commission based upon extensive submitted facts, the material portion of which may be fairly summarized as follows. On \[DATE\], you retired from your employment with \[STATE AGENCY 1\] as a \[POSITION\], in which capacity you served as a \[REDACTED\] in the \[UNIT\]. You have submitted a copy of the job classification specifications for the position of \[POSITION\] (job code \[REDACTED\]), which is incorporated herein by reference. Immediately prior to the commencement of your employment with \[STATE AGENCY 1\] in \[MONTH, YEAR\], you were employed with \[STATE AGENCY 2\] as a \[REDACTED\]. A \[TYPE OF FIRM\] named \[REDACTED\] (the Firm) has a five-year contract with \[STATE AGENCY 1\] (the \[STATE AGENCY 1\] Contract) as a \[TYPE OF CONSULTANT\]. The \[STATE AGENCY 1\] Contract was executed in \[MONTH, YEAR\], before you began employment with \[STATE AGENCY 1\]. The Firm is a \[TYPE OF CONSULTANT\] for two \[STATE AGENCY 2\] contracts (the \[STATE AGENCY 2\] Contracts). While you were employed with \[STATE AGENCY 2\], you participated in the process that selected the \[TYPE OF CONSULTANT\] for the \[STATE AGENCY 2\] Contracts. Between \[MONTH, YEAR\] and \[MONTH, YEAR\], you received telephone calls from the Firm \[OFFICER 1\] and the Firm \[OFFICER 2\], each of whom inquired as to whether you would have any interest in working for the Firm. You explained to each of them that you were not interested in separating from your Commonwealth employment at the time. As detailed in pages 3-5 of your advisory request letter, between \[MONTH, YEAR\] and \[MONTH, YEAR\], you performed job duties in your position with \[STATE AGENCY 1\] that involved interacting with the Firm \[OFFICER 2\] and the Firm \[OFFICER 1\] with regard to matters pertaining to the \[STATE AGENCY 1\] Contract and the possibility of the Firm working on a \[PROJECT\]. In \[MONTH, YEAR\], you received a second telephone call from the Firm \[OFFICER 2\], who again inquired as to whether you would have any interest in working for the Firm. You explained to him that you were still not interested in separating from your Commonwealth employment, but you would be eligible to retire without a penalty in your retirement benefits by mid-\[YEAR\]. Confidential Advice, 21-532 June 24, 2021 Page 3 As detailed in pages 5-8 of your advisory request letter, between \[MONTH, YEAR\] and \[DATE\], you performed job duties in your position with \[STATE AGENCY 1\] that involved interacting with the Firm \[OFFICER 1\], Firm employees, and \[STATE AGENCY 1\] employees with regard to assigning the work for the \[PROJECT\] to the Firm. On \[DATE\], during a telephone conversation with the Firm \[OFFICER 1\] on matters pertaining to the \[PROJECT\], you informed him that you would be retiring on \[DATE\]. Between \[DATE\] and \[DATE\], you had conversations with the Firm \[OFFICER 2\] about a position with the Firm, and on \[DATE\], you received a written offer of employment from the Firm \[OFFICER 2\]. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment with \[STATE AGENCY 1\]. In particular, the following questions are presented by your advisory request: 1. Wmental body with which a public official or public employee -employment restrictions of Section 1103(g) of the Ethics Act? 2. During the one-year period of applicability of Section 1103(g) of the Ethics Act, would you be prohibited from representing the Firm or another \[TYPE OF FIRM\] before \[STATE AGENCY 2\] with regard to existing or proposed \[REDACTED\] with \[STATE AGENCY 2\]? 3. Would you have a conflict of interest under Section 1103(a) of the Ethics Act with regard to accepting employment with the Firm? 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities Confidential Advice, 21-532 June 24, 2021 Page 4 (a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions Conflict or conflict of interest. Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. Authority of office or employment. The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethi the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value 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 Confidential Advice, 21-532 June 24, 2021 Page 5 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 questions presented. In the former capacity as a \[POSITION\] for \[STATE AGENCY 1\], you were a See, Pa.C.S. § 1102; 51 Pa. Code § 11.1; \[CITE\]. This conclusion is based upon the submitted facts and the job classification specifications, which when reviewed on an objective basis, indicate 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; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of your employment with \[STATE AGENCY 1\], you became 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 § 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). 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. Confidential Advice, 21-532 June 24, 2021 Page 6 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term represent 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 ones 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 if the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing contract does not involve the unit where a 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 public 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 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 Confidential Advice, 21-532 June 24, 2021 Page 7 body with which a public official/pu 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 are deemed to have been associated upon termination of your employment with \[STATE AGENCY 1\] is \[STATE AGENCY 1\] in its entirety, including but not limited to the \[UNIT\]. Therefore, for the first year following termination of your employment with \[STATE AGENCY 1\], Section 1103(g) of the Ethics Act would apply before \[STATE AGENCY 1\]. Having set forth the restrictions of Sections 1103(a) and 1103(g) of the Ethics Act, your specific questions shall now be considered. Your first question has been addressed above. With regard to your second question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm or another \[TYPE OF FIRM\]. However, during the first year following termination of your employment with \[STATE AGENCY 1\], Section 1103(g) would prohibit you from engaging in any activities that would involve prohibited representation before \[STATE AGENCY 1\]. Section 1103(g) would not prohibit you from representing the Firm or another \[TYPE OF FIRM\] before \[STATE AGENCY 2\] with regard to existing or proposed \[REDACTED\] with \[STATE AGENCY 2\]. In response to your third question regarding conflict of interest, you are advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your entering into an employment relationship with the Firm subject to the conditions that: (1) you did not use the authority of your public position with \[STATE AGENCY 1\] in matter(s) pertaining to the Firm when you had an actual or reasonable expectation that you would enter into an employment arrangement with the Firm or would otherwise receive a private pecuniary benefit relating to the Firm; and (2) you did not otherwise use the authority of your public position with \[STATE AGENCY 1\] or confidential information received as a result of being in your public position with \[STATE AGENCY 1\] in furtherance of securing an employment arrangement with the Firm or other private pecuniary benefit relating to the Firm. Cf., Desmond, Opinion 08-004. (It is noted that the submitted facts do not clearly indicate at what point in time you would have had an actual or reasonable expectation that you would enter into an employment arrangement with the Firm.) 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. Conclusion: Confidential Advice, 21-532 June 24, 2021 Page 8 In the former capacity as a \[POSITION\] for \[STATE AGENCY 1\], you were a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your employment with \[STATE AGENCY 1\], you became a former public employee subject to Section 1103(g) of the Ethics Act. The former governmental body is \[STATE AGENCY 1\] in its entirety, including but not limited to the \[UNIT\]. For the first year following termination of your employment with \[STATE AGENCY 1\], Section 1103(g) of the before \[STATE AGENCY 1\]. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm or another \[TYPE OF FIRM\]. However, during the first year following termination of your employment with \[STATE AGENCY 1\], Section 1103(g) would prohibit you from engaging in any activities that would involve prohibited representation before \[STATE AGENCY 1\]. Section 1103(g) would not prohibit you from representing the Firm or another \[TYPE OF FIRM\] before \[STATE AGENCY 2\] with regard to existing or proposed \[REDACTED\] with \[STATE AGENCY 2\]. With regard to Section 1103(a) of the Ethics Act, pertaining to conflict of interest, you are advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your entering into an employment relationship with the Firm subject to the conditions that: (1) you did not use the authority of your public position with \[STATE AGENCY 1\] in matter(s) pertaining to the Firm when you had an actual or reasonable expectation that you would enter into an employment arrangement with the Firm or would otherwise receive a private pecuniary benefit relating to the Firm; and (2) you did not otherwise use the authority of your public position with \[STATE AGENCY 1\] or confidential information received as a result of being in your public position with \[STATE AGENCY 1\] in furtherance of securing an employment arrangement with the Firm or other private pecuniary benefit relating to the Firm. Cf., Desmond, Opinion 08-004. (It is noted that the submitted facts do not clearly indicate at what point in time you would have had an actual or reasonable expectation that you would enter into an employment arrangement with the Firm.) Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. 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 Confidential Advice, 21-532 June 24, 2021 Page 9 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. Respectfully, Brian D. Jacisin Chief Counsel