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HomeMy WebLinkAbout02-006 ConfidentialI. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael J. Healey DATE DECIDED: 9/4/02 DATE MAILED: 9/25/02 02 -006 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 July 16, 2002, 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 and C 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 served as A and C to E from [date] until [date]. Prior to holding these positions, you served as Deputy A from [year] to [year] and Deputy C in [year] for F. You resigned from Commonwealth employment on [date],and began new employment in the private sector [date]. With your resignation, your only remaining appointed post is with the G as H. As A to the B and C, you were responsible for the I of the J and were a key general advisor to E. In addition, you served as a member of the B's K, which was the B's primary internal deliberative body. Confidential Opinion, 02 -006 September 25, 2002 Page 2 As C, you also shared authority with the respective Ls over the Ms, Ns and Os in the Ps. Additionally, your duties as C required you to review and approve Q and I contracts entered into by Ps. On [date], you began working in the private sector as [title] at Private Entity R, a Harrisburg -based Q and I agency. You state that at the time you were first approached by Private Entity R to specifically discuss the prospect of your joining that firm, you formally recused yourself from any J discussions or decisions that might have a financial effect on Private Entity R. You are seeking an advisory as to what limits, if any, the Ethics Act would place upon your ability to represent clients before Pennsylvania State government. By letter dated July 25, 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 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. 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. If the activity in question has already occurred, this Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by this Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. 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(gg) and Section 11030) of the Ethics Act. Section 11030) 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 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 Confidential Opinion, 02 -006 September 25, 2002 Page 3 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, 94 -011. However, Section 11030) would not restrict you from representing Private Entity R or its client(s) provided and conditioned upon the assumptions that you did not actively participate in recruiting Private Entity R or such client(s) to Pennsylvania, and that you did not actively participate in recruiting or inducing Private Entity R or such client(s) 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 R or such client(s). 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 ": § 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. "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 Confidential Opinion, 02 -006 September 25, 2002 Page 4 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 public 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. Since the restrictions of Section 1103(g) only apply as to representation before your former governmental body, it is important that we accurately define what your former governmental body includes. In considering your request, we note that we considered a similar advisory request earlier this year regarding an individual who held public positions similar to those which you have held. See, Confidential Opinion, 02 -001. In that prior Opinion, we concluded that the requestor's former governmental body would be limited to D in its entirety. Confidential Opinion, 02 -006 September 25, 2002 Page 5 However, the facts which you have submitted differ in one relevant respect from those which resulted in the issuance of Confidential Opinion, 02 -001. Based upon the facts which you have submitted, your authority as to the Ps was not limited to a shared authority with the respective Ls over the Ms, Ns and Os of such Ps. Rather, your authority extended to reviewing and approving the Q and I contracts of the Ps. The question before this Commission is whether your authority to review and approve such contracts would make those Ps part of your "former governmental body," in addition to D. We conclude that the additional authority to review and approve such contracts is significant for purposes of identifying your former governmental body. We consider your review /approval authority as to the Q and I contracts of the Ps to constitute the sort of "extensive involvement" that would make such Ps part of your former governmental body, in addition to D. See, Confidential Opinion, 01 -004 at 5. As for the fact that a different conclusion was reached in Confidential Opinion, 02 -001, we need only reiterate that advisories are issued based upon the facts submitted by the requestor, and they only afford a defense to the extent the requestor has truthfully disclosed all of the material facts. It may be that the requestor in Confidential Opinion, 02 -001 did not have review /approval authority as to the Q and I contracts of the Ps, or it may be that the requestor omitted material facts from the advisory request. In any event, based upon the facts which you have submitted, 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 and all of the Ps as to which you reviewed and approved such contracts. We parenthetically note that your former governmental body would obviously not include the G which you continue to serve as H. 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 R or its client(s) before your former governmental body as identified above. 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 S. 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), (i). Under Section 11030) of the Ethics Act, such individual would not be prohibited from being Confidential Opinion, 02 -006 September 25, 2002 Page 6 employed by, receiving compensation from, assisting, or acting in a representative capacity for a private entity or its client(s) conditioned upon the assumptions that he did not actively participate in recruiting the private entity or such client(s) to Pennsylvania, and that he did not actively participate in recruiting or inducing the private entity or such client(s) to open or expand a lant, facility, or branch in Pennsylvania through a grant or loan of money or a promise of 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. Where such individual's duties would have included reviewing and approving the Q and I contracts of Ps, the governmental body with which he 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 and all of the Ps as to which he reviewed and approved such contracts. 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. 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(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 Commissioner Chair Louis W. Fryman and Vice Chair John J. Bolger dissent as to the delineation of the former governmental body as extending beyond D.