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HomeMy WebLinkAbout21-539 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 6, 2021 FACSIMILE: 717-787-0806 wEBSITE: Nvmv.ethics.12a.gov 21-539 This responds to your letter received [REDACTED], by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues presented below: Issues: 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 following termination of your employment as [EMPLOYMENT POSITION], for the [CITY DEPARTMENT]? Brief Answer: Yes. As a former public employee, during the first year following termination of your employment with the [CITY DEPARTMENT], Section 1103(g) of the Ethics Act would apply and restrict you from engaging in "representation" of a "person" — including but not limited to a new employer, before the [CITY DEPARTMENT]. 2. Whether the Public Official and Employee Ethics Act (Ethics Act), specifically 65 Pa. C.S. §1103(g), would impose prohibitions or restrictions upon you serving as a committee representative for a labor union, when as a committee member, you are representing the interests of the labor union of your former governmental entity? Brief Answer: YES. Section 1103(g) of the Ethics Act imposes post -public employment restrictions. You may serve as an appointed committee member of the labor union, provided you do not appear and/or represent any "person" before your former governmental body ([CITY DEPARTMENT]) for one year following your termination of [CITY] employment. Confidential Advice, 21-539 August 6, 2021 Page 2 3. Whether the Public Official and Employee Ethics Act (Ethics Act), specifically 65 Pa. C.S. § 1103(g), would impose prohibitions or restrictions upon you providing technical guidance or advice to the labor union regarding proposed rules and/or regulations? BriefAnswer: NO. A former public official/public employee may assist in the preparation of any documents presented to his former governmental body and/or counsel any person regarding that person's appearance before the former governmental body. Provided the former public employee's activity in this respect is not revealed to the former governmental body. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. On [DATE REDACTED], you resigned from your employment as a [EMPLOYMENT POSITION] for the [CITY]. For the last [REDACTED] years of your [REDACTED] -year tenure with the [CITY], you were assigned to the [CITY DEPARTMENT]. You have included a job description for [EMPLOYMENT POSITION]; however, you note that the description does not accurately reflect your former responsibilities, since the structure of the [CITY DEPARTMENT] is different than most other [CITY] agencies. You state that within the job description, some of the typical examples of work were not within your purview, because of the unique structure of the [CITY DEPARTMENT]. On [REDACTED], you began employment with the [LABOR UNION]. The [LABOR UNION] is the authorized collective bargaining unit that represents the [EMPLOYEES] of the [CITY DEPARTMENT]. A collective bargaining agreement sets forth the relationship between the [CITY] and [LABOR UNION]. The elected board of [LABOR UNION] negotiates all employment terms and conditions for their members as dictated by law. The elected board members of [LABOR UNION] are the primary interface between the [CITY] and the [CITY DEPARTMENT]. You are currently employed by the [LABOR UNION] in a non -elected, administrative position, which reports to the Executive Board's President. You have stated that your current job duties and responsibilities include: administration and oversight of daily activities of the [LABOR UNION] local office; the supervision, evaluation, and assistance in the selection of non -elected personnel; recommendation and implementation of improvements with staff and office functions; to provide guidance and administrative support to elected board members; to sit on any internal committees of the [LABOR UNION]; to collaborate with the executive team members to implement business strategies; and oversight of the [LABOR UNION]'s legal plan. You seek the advice of the State Ethics Commission concerning any restrictions that may be imposed upon you by the Pennsylvania Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seq., regarding what, if any, action you may take as a representative of the [LABOR UNION] and potential appearance back before the [CITY] and/or the [CITY DEPARTMENT]. Confidential Advice, 21-539 August 6, 2021 Page 3 In particular, the following questions are presented by your advisory request: What constitutes your formal governmental body for application of the Ethics Act? 2. Is your designation a "former public employee" or a "former public official"? 3. Can the [LABOR UNION] designate you to serve on a committee pursuant to terms of the collective bargaining agreement with the [CITY]? 4. Can you represent the interest of the [LABOR UNION] without violating section 1103(g) of the Ethics Act? 5. Regarding voting pursuant Section 11030), in the event you serve as a committee member, would you be able to vote in matters that may affect the former governmental entity? 6. What if any prohibitions are placed upon you pursuant section 1103(a), to the extent that you provide technical assistance or guidance to the [LABOR UNION] regarding proposed rules or regulations that may affect it? 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 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 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. In your the former capacity as a [EMPLOYMENT POSITION] for the [CITY], you were a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1. 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) Confidential Advice, 21-539 August 6, 2021 Page 4 where the economic impact is greater than de minimis on the interests of another person. This conclusion is based upon a review of both the job description in its entirety and an independent review of just those sections you state applied to your former position. Consequently, upon termination of your employment with the [CITY], 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 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 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. Confidential Advice, 21-539 August 6, 2021 Page 5 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/herself, Confidential Opinion, 93-005, as well as anew governmental employer. Ledebur, Opinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in aM 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 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 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; ShaM, Opinion 90-009-R. The governmental body with which you are deemed to have been associated upon termination of your employment with the [CITY] is the [CITY DEPARTMENT] in its entirety, including but not limited to any unit or subdivision thereof. Therefore, for the first year following Confidential Advice, 21-539 August 6, 2021 Page 6 termination of your employment with the [CITY], Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the [CITY DEPARTMENT]. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be considered. Your first and second questions "what constitutes your formal governmental body for application of the Ethics Act" and "is your designation a `former public employee' or a `former public official"' have been addressed above. Also addressed above is your final question "what if any prohibitions are placed upon you pursuant section 1103(a)i, to the extent that you provide technical assistance or guidance to the [LABOR UNION] regarding proposed rules or regulations that may affect it?" With regard to your third and fourth questions, you are advised that Section 1103(g) of the Ethics Act does not prohibit you from being employed by [LABOR UNION] or representing [LABOR UNION] before an entity other than the [CITY DEPARTMENT]. You may be appointed by the [LABOR UNION] to serve on a committee pursuant to terms of the collective bargaining agreement, however you are prohibited from making any type of personal appearance before the [CITY DEPARTMENT], any attempt to influence the [CITY DEPARTMENT]; submitting any bid or contract proposals to the [CITY DEPARTMENT]; and participating in any matters before the [CITY DEPARTMENT] — such as acting on behalf of [LABOR UNION]. This prohibition only extends for a time period of one year from the date of your separation with the [CITY]. As to your question "can you represent the interest of the [LABOR UNION] without violating section 1103(g) of the Ethics Act? YES, you can represent the interests of [LABOR UNION] without transgressing the Ethics Act, provided the restrictions and guidelines delineated above are adhered to. Although you are representing the interest of the employees of the [CITY DEPARTMENT], you must be certain to not appear before them and/or the [CITY DEPARTMENT] in whole or in part, during the one-year restricted time period. Although it is axiomatic that you are "representing" the interests of employees of the former government through your employment with [LABOR UNION], you must nonetheless avoid appearing before those you represent. As to your final question, "regarding voting pursuant Section 11030), in the event you serve as a committee member, would you be able to vote in matters that may affect the former governmental entity" it is noted that the provisions of 65 Pa.C.S.§11030) only apply to public officials/public employees, and even then only as to a three -member board. As an employee of [LABOR UNION] you do not appear to be either a "public official/public employee" and as such there is no ability to vote/take action pursuant Section 11030) of the Act. You may act as a committee member and act as to the [CITY DEPARTMENT] in committee meetings for just as 1 It is believed the Requester was referring to 1103(g) as opposed to 1103(a). To the extent the Requester was referencing 1103(a), the restrictions and requirements of Section 1103(a) of the Ethics Act (pertaining to conflict of interest) only apply to public officials/public employees and do not apply following termination of service in the public position. Confidential Advice, 21-539 August 6, 2021 Page 7 11030) does not apply to non-public officials/employees, neither does 1103(a) "conflicts of interests." 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: In the former capacity as a [EMPLOYMENT POSITION], for the [CITY DEPARTMENT] you were a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your employment with the [CITY], you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the [CITY DEPARTMENT] in its entirety. For the first year following termination of your employment with the [CITY], Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the [CITY DEPARTMENT]. The restrictions as to representation outlined above must be followed. 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 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. RespectfullyaCounse