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HomeMy WebLinkAbout21-564 Cohen 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 December 15, 2021 To the Requester: Mr. Roger J. Cohen 21-564 Dear Mr. Cohen: This responds to your correspondence received November 19, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issue presented below: Issue: Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose any restrictions upon you with regard to post-public employment following your service as the Senior Policy Advisor/Special Advisor Secretary of Transportation, Pennsylvania Department of Transportation ()? Brief Answer: YES. Although Section 1103(g) of the Ethics Act would not prohibit you from accepting employment following your public service, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve before PennDOT. Facts: You request an advisory from the Commission regarding the post-employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows: After almost seven years at PennDOT, you will be retiring from the Commonwealth effective December 31, 2021. Your official title/position description is Senior Policy Advisor/Special Advisor Secretary of Transportation. Following retirement, you may wish to take on part-time work in the private sector within the field of transportation policy and public affairs and have received preliminary inquiries from such firms regarding your interest. Cohen, 21-564 December 15, 2021 Page 2 You plan to work on a part-time (no more than 2.5 days per week) basis providing executive-level consulting counsel services in public affairs, including policy analysis, issue management and strategic communications. You anticipate that you will work on a both a pro- bono and paying basis, and that your probable clients may include local government agencies both within and outside the Commonwealth, public authorities, academic research institutions, foundations, trade associations, community-based and non-profit organizations, issue-advocacy groups and private businesses. You expect to work for such clients, both directly and through contracting arrangements with other consultants who advise them. Your official Commonwealth Employment Position Description identifies, in pertinent part, the following: Position Purpose: Provides advisory and consultative professional work for the Secretary of Transportation on a variety of highly complex and sensitive operational and programmatic matters. Description of Duties: participate in freight planning initiatives within the Department to respond to emerging trends including requests for proposals for potential P3 opportunities and freight summit planning. Participate in the Georgetown Climate Center activities with other Northeastern states, including DEP, on decarbonization recommendations including electric vehicle infrastructure. including annual summit planning, testing guidelines implementation, policy task force, pilot projects, legislation review and public advocacy. Support Policy Office initiatives including internship and fellowship opportunities. Support the Secretary and work with our Communications team on the Strategic Directives messaging, preparing presentations, speeches, and talking points for the Secretary. Implement the Speaker Series initiative for Thought Leadership by continuing to bring industry leaders to Harrisburg for the staff to hear. Work with the Depar alternatives such as mileage based user fees. Cohen, 21-564 December 15, 2021 Page 3 Oversees programs, projects, services, and initiatives of the Secretary's Office, and provides high level staff assistance on a wide range of activities encompassi coordination with Departmental program managers, on behalf of the Secretary, to identify issues; develop goals and objectives; and to develop strategic planning efforts. Interacts with high level administrative officials and decision makers to objectives are achieved. Serves as a primary contact person for the Secretary's executive staff on complex and sensitive issues which may often ultimately require the Secretary's knowledge or decision-making. Identifies problems and solutions, researches and recommends action(s) to the Secretary. Monitors the status of projects and major issues. Provides direction to executive staff for follow-up and to ensure appropriate and timely action occurs. Recommends and develops a variety of correspondences, reports, and presentations for the Secretary in response to inquiries, to communicate Departmental key initiatives and strategic plans. Develops recommendations concerning programs, projects, and other operational matters for the Secretary's consideration. Represents the Department in various statewide organizations, interest groups, councils, and committees. Represents the Secretary at meetings, as requested, to present Departmental initiatives/position on a variety of Manages select special projects for the Secretary, including working with Deputy Secretaries and other executive team members on the activities of assigned management work groups. Performs other duties as required. You state that you are familiar with §1103(g) of the Public Official and Employee Ethics Act, and understand it provisions; but that you have also been counseled that it would be beneficial to receive an advisory from the Commission clarifying those activities from which you will be prohibited during the year following your termination of Commonwealth employment, along with any other terms that the Commission generally sets out. Cohen, 21-564 December 15, 2021 Page 4 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 the material facts. As Senior Policy Advisor/Special Advisor Secretary of Transportation, you are - -are subject to the Ethics Act and the Regulations of the Pennsylvania State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Schoch, Advice 15-537. Upon termination of Commonwealth employment, you will become a former public employee as well as a former executive-level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) 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 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. § 1103(i). Section 1103(i) 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 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of a new employer, rather than the new employer itself. See, Confidential Opinion, 94-011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business subject to the conditions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing Cohen, 21-564 December 15, 2021 Page 5 such business 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. Unlike Section 1103(i), 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 with whi § 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). specifically defined in the Ethics Act as follows: § 1102. Definitions 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. firm, partnership, committee, club or other organization or group of persons. 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. It includes, inter alia, corporations and other businesses, including a nonprofit business/entity. See, Rendell v. State Ethics Commission, 603 includes nonprofit entities.) 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. 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 Cohen, 21-564 December 15, 2021 Page 6 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. A former public official/public employee may assist in the preparation of 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 reg 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 for compensation. The former public official/public employee is not restricted as to representation before other agencies or entities. 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. Applying the foregoing to the specific facts presented, the governmental body with which you will be deemed to have been associated upon separation from the Commonwealth is the Pennsylvania Department of Transportation (PennDOT) in its entirety. Therefore, for the first year following separation, S Department of Transportation. 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: - - Section 1103(g) and Section 1103(i) of the Ethics Act. Your former governmental body would be PennDOT in its entirety. For the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve including but not limited to a new employer/client Cohen, 21-564 December 15, 2021 Page 7 before PennDOT while doing so for compensation. 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. 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. This letter is a public record and will be made available as such. Respectfully, Brian D. Jacisin Chief Counsel