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HomeMy WebLinkAbout94-509 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 10, 1994 94 -509 Re: Former Public Employee; Section 3(g); D, Statewide C Management System Coordinator, Department A. This responds to your letter of December 30, 1993, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents arty restrictions upon employment of a D following termination of service with Department A. Facts: You have requested an advisory from the State Ethics Commission regarding what prohibitions or restrictions may apply to you under the Ethics Laurin the event you terminate your employment with Department A and begin working for a new - employer that transacts business with Department A. Currently, you are employed in Bureau B, C Division. Your duties include coordinating statewide C Management System, manipulating management system data through department programs for specific presentation requests, supervising six technical C inspection operators and reviewing C design plans. In your new employment, you would be performing C inspections for existing Department A contracts and other contracts anti' performing C designs for existing Department. A contracts and of Contracts. You state that you have performed C inspection aryl assisted in C design reviews, you have not done so for 4w.er fonths. Further, you state that you do not anticipate any dot contact or interaction with department personnel or agents•- in•your new employment. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a D for Department A, you are considered a "public Confidential Advice 94 -509 February 10, 1994 Page 2 Section 2. Definitions. employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law atld the Regulations of this Commission. - 65 P.S. §402; 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 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 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) 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. Initially, to answer your request the governmental body 4th which you are associated while working with bepareiit A must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or p],ic employee is or has been associated" is defined under -tlie Ethics Law; as follows: "Governmental body with which a public official or public. employee is or has been associated." The governmental body within State government ar a political subdivision by which the public official or employee is ot- hers been employed or to which the public ofZicial or employee is or has been appointed or subdivisions and offices within that governmental body. In . aqn the above def'inition to the instant matter, we must, concludw that the governmental body with wh c f- you ate assooiaze4' uponm terminat ton of public service' would be Dep'hrtmet t A in its entirety,, including' but rireWOOW to Bureau' B. The Confidential Advice, 94 -509 February 10, 1994 Page 3 above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sia�o:i, Opinion 90 -006, the Commission found that a former Division• Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with Department A, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis Department A in its entirety, including but not limited to Bureau B. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public Official or public employee is or has been associated,." It was the specific intent of the General Assembly to define the above term so that it was not merely limited, to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a ldoa•1 government but the entire unit..." Letr dative Journal of House, 1989 Session, No. IS at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 51901, it is Blear that the governmental body with which you are associated is Department A in its entirety, including but not limited to Bureau B. Turning now to the scope of the restrictions under Section 3(g), the Ethics Lau, floe nbt affect one's ability to appear before agencies or entities other than with respect to the former gov htal bodyi likewise, there is no general limitation on the type bf emplbytnent in which a person may engage, following departure from their governmental body. It is noted, however, that the cohnie s of interest law is primarily concerned with financial Confidential Advice, 94 -509 February 10, 1994 Page 4 .:: conflicts and violations of the public trust. The intent of the law generally is 'that during the term of a p erson's public employment he must act consistently with the public trust and upon departure from the px1ic sector, that individual should not be allowed to utilize his association with the 'public sector, officials or employees to secure for himself or a new employer, treatment or benefits that May be obtainable only because of his association with his former governmental body. In respect to the one year restriction aglainst such "representation," the Ethics Law defines "Represent" as follows: Section-2, . Definitions Represent. To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearance s, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. The - Commission, in Popovich, Opihion 89 -005, has also _interpreted the _term "representation" as used in - - Section 3(g) of the Ethics _Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, °negotiations or renegotiations in general or as to c6htracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are sited by car• contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting oh behalf of a person; 5,. Lobbying, that is representing the interests of any person or employer before the fofifier governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such tik4esal, document, or bid, if Submitted to of reviewed by the faimer governmental body constitutes as attempt to influence the 6fiser governmental body. In Shay, iniOn 91 -012, the Comm §eta held that Section 3(g) would prohibit the inclUsibti of the naiad of a former public official /public employee eh in 'Idiaes submitted by his Confidential Advice, 94 -509 February 10, 1994 Page 5 new employer to the former governmental body, even though the invoices pertained to a contract which existed prior to termination of public service. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. As to the specific inquiry regarding performing inspections and designs for existing Department A contracts, Shay, supra, must be reviewed. In Shay the Commission held that Section 3(g) would prohibit 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 pertained to a contract which existed prior to termination of public service. Specifically, the issue in Shay was whether restrictions of Section 3(g) applied where the name of the former public employee would appear on invoices submitted to his former governmental body. It was asserted that the name on an invoice was merely a line item of charge like any Other cost and did not indicate that the former public employee even prepared the invoice. The Commission, however, held that the propdsed inclusion of the former public employee's name on invoices submitted would fit within the definition of "represent" and would be prohibited by the Ethics Law. The key factor was that the involvement of the former public employee on behalf of the new employer was being made known to the former governmental body. The Commission further held that if an invoice were challenged, it would be possible that the former public employee would become a participant in the resolution of the dispute by explaining or testifying on behalf of the new employer. Such activity would also- constitute representation. In this case, it is possible that a dispute could arise as to an inspection you performed On a Department A contract. You could be required to defend your work by explaining, testifying or otherwise whereby your involvement with the contract would become known to Department A. Such activity would be considered "representation". Accord=ingly, while you would not be prohibited from working for your new employer, you must be aware that the submission of your A tore to Department A on any document related to your work on such contracts, your appearance before Department Ain any manner on behalf of your new employer and any contact you may have with any Department A personnel regarding your work on any such contracts, would be among the activities considered , be prohibited representation under the Ethics Law. You may assist in the preparation of any doeuutents presented to Department A. However, you may not be identified on documents submitted to. Department A. You may also counsel any person regarding that person's appearance before Department A. once again, however, the activity-in this respect should snot be revealed to department A. Of course, any ban under the Ethics Law would not Confidential Advice, 94 -509 February 10, 1994 r- .. Page 6 prohibit or preclude the making of general informational inquiries of Department A to secure information which is available to the general public. 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. In addition, the term "Person" is defined as follows under the Ethics Law: . Section 2. Definitions. " ?arson. A business, governmental body, individual, Corporation, union, association, firm, partnership, Cafttmittee, club or other organizatibfz or group of persons. In Confidential, Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting sefVices to his former governmental body for a peritd Of one year after termination of service in that the prohibition against representing a person includes the ,former public Official/employee representing hi1ttself. In addition, SectioftS 3(b) and 3(c) Of the Ethics Law 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 adtion; or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to irply that there has -Teen 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 Law; the applicability of any other statute, lode, ordinance, regulation or other code of conduct other than the Ethics ACt has not been considered in that they do not invO1ve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: AS ai D far Deparf3ttent A, you are considered a "public employee" as defined in the Ethics Law. Upon termination Of service with Department A, ydu would become a "former public employee" Subject to Section 3(g) of the Ethics Law. The former g ov e rnmental body is Department A in its entirety, including but not l i tad tO Eureau E. The restrictions as to representation outlined above must be feiiowed. The propriety of the proposed cbnduEt has only been addressed under the Ethics Law. Confidential Advice, 94 -509 February 10, 1994 Page 7 Further, should service be terminated, as outlined 'above, the Ethics Law also requires that a Statelhent of Financial Interests be filed for the year following termination of service. Pursuaht to Section 7(11), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have ably 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 fifteen (15) 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 mall, delivery service, or by FAX transmission (717- 787 - 0806). S err Vincent Do • o Chief Counsel