Loading...
HomeMy WebLinkAbout21-544 Wilt 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 August 26, 2021 To the Requester: Mr. Ronald C. Wilt 21-544 Dear Mr. Wilt: This responds to your letter received August 2, 2021, 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 restrictions upon you following termination of your employment as an Agency IT Director 3 for the Employment, Banking and Revenue Delivery Center under the Go? Brief Answer: YES. During the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity tincluding but not limited to yourself or a new employer would include: (1) the Executive Offices of the Governor; and (2) the Office of Administration in its entirety, including the Employment, Banking and Revenue Delivery Center. 2. Whether Section 1103(g) of the Ethics Act would prohibit you from working as a contractor to the Office of Administration? Brief Answer: YES. Section 1103(g) of the Ethics Act would prohibit you from working as a contractor to the Office of Administration as such activity would constitute prohibited representation of a personyourselfbefore your former governmental body. Wilt, 21-544 August 26, 2021 Page 2 3. Whether Section 1103(g) of the Ethics Act would prohibit you from performing work for a contractor on a contract that directly supports the Office of Administration or performing workas a contractor or an employee of a contractorfor a Commonwealth agency other than the Office of Administration? Brief Answer: Section 1103(g) of the Ethics Act would not prohibit you from performing work for a contractor on a contract that directly supports the Office of Administration or performing workas a contractor or an employee of a contractorfor a Commonwealth agency other than the Office of Administration subject to the condition that in so doing, you would not engage in prohibited representation before your former governmental body. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: Since approximately 2017, you have been employed as an Agency IT Director 3 for the Employment, Banking and Revenue Delivery Center under the Office of Administration, in which capacity you serve as the Employment, Banking and Revenue Delivery Center Cross Application Integration Director. You have submitted a copy of your official Commonwealth position description and various organizational charts, which are incorporated herein by reference. It is noted that per the position description and the organizational charts, your position falls under the Executive Offices of the Governor. You note that in 2017, a Commonwealth initiative consolidated all executive agency human resources (HR) and information technology (IT) positions under the Office of Administration. Under t HR and IT employees who worked for individual state agencies were centralized in the Office of Administration and organized into delivery centers that serve multiple agencies. In your current position, you provide support to various Commonwealth agencies. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your Commonwealth employment. In particular, you pose the following questions: 1. Whether you would be permitted to work as a contractor to the Office of Administration; 2. Whether you would be permitted to perform work for a contractor on a contract that directly supports the Office of Administration; and 3. Whether you would be permitted to perform workas a contractor or an employee of a contractorfor a Commonwealth agency other than the Office of Administration. Wilt, 21-544 August 26, 2021 Page 3 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. As an Agency IT Director 3 for the Employment, Banking and Revenue Delivery Center under the Office of Administration, you are Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the position 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 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 Commonwealth employment, you would become 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. Wilt, 21-544 August 26, 2021 Page 4 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 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. During the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) generally would prohibit a former public official/public employee from contracting with the former governmental body (see, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005) or providing consulting services constituting representation before the former governmental body (see, Claycomb, Opinion 14-004; Schrempf, Opinion 13-004). 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 persons appearance before his former governmental body. Once again, however, the activity in this respect should not Wilt, 21-544 August 26, 2021 Page 5 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 body with which a public official/public employee is or has been 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 would be deemed to have been associated upon termination of your Commonwealth employment, hereinafter collectively referred to as your would include: (1) the Executive Offices of the Governor; and (2) the Office of Administration in its entirety, including but not limited to the Employment, Banking and Revenue Delivery Center. See, Malinoski, Advice 21-517; Phillips, Advice 18-573. Therefore, for the first year following termination of your Commonwealth employment, Section including but not limited to yourself as a contractor or a new employerbefore your former governmental body. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from working as a contractor to the Office of Administration as such activity would constitute prohibited representation of a personyourselfbefore your former governmental body. See, Shaub, supra; Claycomb, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. In response to your second and third questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from performing work for a contractor on a contract that directly supports the Office of Administration or performing workas a contractor or an employee of a contractorfor a Commonwealth agency other than the Office of Administration subject to the condition that in so doing, you would not engage in prohibited representation before your former governmental body. 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. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) Wilt, 21-544 August 26, 2021 Page 6 Conclusion: As an Agency IT Director 3 for the Employment, Banking and Revenue Delivery Center under the Office of Administration, you are a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your Commonwealth employment, you would become a former public employee subject to Section 1103(g) of the Ethics Act. Based upon the submitted facts, your former governmental body would include: (1) the Executive Offices of the Governor; and (2) the Office of Administration in its entirety, including but not limited to the Employment, Banking and Revenue Delivery Center. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act including but not limited to yourself as a contractor or a new employerbefore your former governmental body. The restrictions as to representation outlined above must be followed. 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. This letter is a public record and will be made available as such. 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. Respectfully, Brian D. Jacisin Chief Counsel