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HomeMy WebLinkAbout02-625 ConfidentialADVICE OF COUNSEL L. December 24, 2002 02 -625 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 11030); A; B; C. This responds to your letter of November 25, 2002, by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act Pa.C.S. § 1101 et seq., presents any restrictions upon employment following termination of service with the C. Facts: As an A for the B with the C, you seek a confidential State Ethics Commission. You have submitted facts, which may be as follows. ( "Ethics Act "), 65 of an A for the B advisory from the fairly summarized On [date], you were appointed A for B by D. Prior to your appointment, you served as E from [date], through [date]. From [date], through [date], you served as F with the G. As an A for B, you have oversight responsibility for a number of programs and initiatives related to H for I. You state that B is responsible for creating the nexus between Pennsylvania state government and the J to assist with K efforts. You delineate the functions of the deputate as follows: In order to facilitate the delivery of B services M, you state that the Commonwealth has contracted with independent contractors based in the following N: O. You state that each of the independent M contractors provides P services to your deputate based on a contract prepared by C's Q. Specifically, the independent contractors provide the following services to C and its M constituent groups: R. You assert that as an A, you do not have direct day -to -day fiscal or operational supervision over the independent M contractors who are supervised by two area directors and an operations director in B. Confidential Advice, 02 -625 December 24, 2002 Page 2 You have been presented with possible employment as S with T. In this capacity, you state that you would be responsible for U for your employer, V, and the creation of W for the X and Y. You state that as S, you would likely have contact with individuals who either previously served or currently serve as independent M contractors for C. You state that while each independent M contractor is a party to a professional services contract with C, not one has received financing in the form of a grant or loan from C that has caused it to establish or expand a presence in the Commonwealth. You state your awareness of the post - employment restrictions under the Ethics Act, and specifically the prohibition against making any appearances before C for a period of at least one year following the conclusion of your Commonwealth employment. You assure that if would accept the position with T, under no circumstances would you appear before C on behalf of your new employer or permit your name or any references to yourself to be included in written submissions to C on behalf of your new employer at any time during the one year period following termination of your Commonwealth employment. You make the following statement: I have not participated in creation sic of T or have I or my deputate been involved in providing any funding for the creation of the Z or AA or been party [sic] to any Commonwealth contracts concerning the Z and AA. My proposed employment with T is not dependent on, and is wholly unrelated to, any financial assistance provided by the Commonwealth to Z, AA or BB. Additionally, no actions taken by me during my Commonwealth employment resulted in the creation of the position of S with T, or in the funding, either directly or indirectly, of that position. Based upon the foregoing submitted facts, you seek confirmation that your prospective employment as S with T is acceptable, and inquire as to whether the Ethics Act would prohibit you in your new position from having any contact with independent M contractors. 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, the 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. As an A for B with C, you would be considered a public official /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 would become a former public official /employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 11030) of the Ethics Act. Section 11030) restricts former executive -level State employees as follows: § 1103. Restricted activities Confidential Advice, 02 -625 December 24, 2002 Page 3 (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. § 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 No. 94 -011. However, Section 11030) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for T provided and conditioned upon the assumptions that you did not actively participate in recruiting T to Pennsylvania, and that you did not actively participate in recruiting or inducing T 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 T. 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 loy or contain the name of a former public official or public employee. Confidential Advice, 02 -625 December 24, 2002 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 employee-hiimself, 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, 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 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 /employee had influence or control but Confidential Advice, 02 -625 December 24, 2002 Page 5 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. The governmental body with which you would be associated upon termination of public service is C in its entirety including, but not limited to, B. Therefore, for the first year after termination of your service with C, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before C. Having set forth the restrictions of Section 1103(g) and Section 11030) of the Ethics Act, you are advised that although the Ethics Act would not preclude you from accepting employment as S with T, it would restrict your conduct in your new position to the extent that such conduct would constitute prohibited representation before C. The Ethics Act would not prohibit you from having contact with independent M contractors as they would not constitute your former governmental body. 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 madde 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. Conclusion: Upon termination of service as an A for the B with the C, you would become a tormer public official /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. § 1101 et seq. Under Section 11030) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for T based upon the assumptions that you did not actively participate in recruiting T to Pennsylvania, and that you did not actively participate in recruiting or inducing T 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. With regard to Section (g), the restrictions as outlined above must be followed. The former governmental body would be the C in its entirety including, but not limited to, B. 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(11), 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 requestor 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. Confidential Advice, 02 -625 December 24, 2002 Page 6 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. Sincerely, Vincent J. Dopko Chief Counsel