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HomeMy WebLinkAbout03-503 LombardoJanuary 15, 2003 James J. Lombardo, Executive Director Governor's GCLCS for Local Government Services 400 North Street, 4 Floor Commonwealth Keystone Building Harrisburg, PA 17120 -0225 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 11030); Executive Director; Governor's Center for Local Government Services; Pennsylvania Department of Community and Economic Development. Dear Mr. Lombardo: ADVICE OF COUNSEL 03 -503 This responds to your letter of December 18, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any restrictions upon employment of an Executive Director following termination of service with the Governor's Center for Local Government Services ( "GCLGS ") with the Department of Community and Economic Development ( "DCED "). Facts: As Executive Director of the GCLGS with DCED, you seek an advisory r�fie State Ethics Commission as to the post - employment restrictions that apply to you under the Ethics Act. You have submitted facts, which may be fairly summarized as follows. GCLGS, which was established in 1996, is the principal state entity for land use monitoring and technical assistance. In addition, GCLGS is responsible for providing training, consulting and technical assistance to local governments. In July 2000, you were appointed by Governor Ridge to serve as DCED's Executive Director for GCLGS. As Executive Director, you have oversight responsibility for a number of programs and initiatives related to local government. You also manage a team of local government policy specialists. In January 2003, you intend to retire from your current position and from state employment. You state that the Pennsylvania State Association of Township Supervisors ( "PSATS ") has approached you with the opportunity to become its Director of Development following your retirement. Reporting to the Executive Director, you would be principally responsible for developing and promoting relationship and capacity Lombardo, 03 -503 January 15, 2003 Page 2 building strategies for PSATS and its membership, with emphasis on intergovernmental cooperation and risk management for effective local governance; providing leadership in guiding many of PSATS' existing programs and services to best meet the needs of the association's various constituencies; and developing new outreach strategies and programs to further enhance PSATS' service to its membership. You state that your duties would not involve any appearances before or dealings with DCED during the first year of PSATS employment. You note that you have informed PSATS about the limitations under the State Ethics Act, and specifically about the prohibition against you making any appearances before DCED for a period of at least one year following the conclusion of your Commonwealth employment, and that PSATS has accepted that limitation. Given the foregoing, you state that if you would accept the position with PSATS, under no circumstances would you appear before DCED on behalf of PSAT, or on behalf of any client of PSATS, for at least one year after the conclusion of your Commonwealth employment. You additionally assure that you would not permit your name or references to you to be included in materials, including proposals, submitted to DCED on behalf of PSATS or on behalf of any client of PSATS at any time during the one year period following the conclusion of your Commonwealth employment. You state that while PSATS is currently a party to a contract with DCED, the existing contractual relationship is limited to the provision of services in a narrow subject area unrelated to the offer of employment that you have received from PSATS. You describe the contract as a municipal training contract entered into ursuant to the Commonwealth's Request for Proposal ( "RFP ") process and provide the following information describing the relevant circumstances of PSATS' contract with DCED: 1. Prior to the establishment of the GCLCS, in the spring of 1996, the former Department of Community Affairs, through its Bureau of Local Government Services, followed the Commonwealth's RFP process in the selection of State Certified Municipal Training Partners to provide training to local officials in the Commonwealth. At the time, you were the Acting Bureau Director for DCA. Consistent with the RFP process, a review committee was selected to evaluate vendors and responded to the RFP. You served on the review committee. PSATS submitted a proposal and was one of three vendors selected by the committee to provide municipal training for a five -year contract sum. 2. After the dissolution of DCA, the PSATS contract was administered through the GCLCS at DCED. Although you were then serving as Deputy Director of the GCLCS, you had some management responsibility with respect to the PSATS contract, however, the primary responsibility was delegated to one of the Local Government Policy Specialists. 3. In anticipation of the 2001 expiration of the three municipal training contracts, DCED requested interested vendors to respond to an RFP in April 2000. Consistent with Commonwealth policy, a review committee was selected to evaluate vendor proposals. You chaired the review committee which selected two vendors from a list of ten proposals. PSATS once again responded to the RFP and was selected as one of the successful vendors. You state that at no time during either the first RFP process in 1996 or the second RFP process in 2000 did you discuss possible employment with PSATS. You state that, in fact, during the RFP process, you were unaware of any employment opportunities with PSATS, and you were not pursuing any such opportunities. It was only after learning of your intentions to retire from your position and state government did PSATS approach you with this opportunity. You assert that any involvement you might have as an employee of PSATS would be limited to incidental duties related to the performance of the municipal training Lombardo, 03 -503 January 15, 2003 Page 3 function and would exclude any contractual dealings between PSATS and DCED during the first year of your employment. You reiterate that your prospective employment opportunity with PSATS was presented to you; you did not solicit the offer from PSATS. You state that you have not accepted anything of value from PSATS during your Commonwealth employment. You maintain that no actions taken by you during your Commonwealth employment resulted in the creation of the position of Director of Development for PSATS. You assert that you have not participated in any recruitment or inducement of PSATS to expand or grow its presence within the Commonwealth, and you have not been involved in the awarding of any grants or loans to PSATS through DCED or through any other Commonwealth entity. 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 Executive Director for the Governor's Center for Local Government Services ( "GCLGS ") in the Department of Community and Economic Development ( "DCED "), you would be considered a public official /public 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 /public 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 (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 Lombardo, 03 -503 January 15, 2003 Page 4 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 the Pennsylvania State Association of Township Supervisors ( "PSATS ") provided and conditioned upon the assumptions that you did not actively participate in recruiting PSATS to Pennsylvania, and that you did not actively participate in recruiting or inducing PSATS 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 PSATS. 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. "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; Lombardo, 03 -503 January 15, 2003 Page 5 (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, 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 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 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 would be DCED in its entirety including, but not limited to GCLGS. Therefore, for the first year after termination of your service with PSATS, Section 1103(g) of the Ethics Act would apply and restrict representation" of "persons" before Having set forth the restrictions of Sections 1103(g) and 11030) of the Ethics Act, you are advised that although the Ethics Act would not preclude you from accepting employment as Director of Development of PSATS, it would restrict your conduct in your new position to the extent that such conduct would constitute prohibited representation before DCED. 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 made to these provisions Lombardo, 03 -503 January 15, 2003 Page 6 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 Executive Director of the Governor's Center tor Local Government Services ( "GCLCS ") with the Department of Community and Economic Development ( "DCED "), you would become a former public official /public 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 the Pennsylvania State Association of Township Supervisors ( "PSATS ") based upon the assumptions that you did not actively participate in recruiting PSATS to Pennsylvania, and that you did not actively participate in recruiting or inducing PSATS 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 1103(g), the restrictions as outlined above must be followed. The former governmental body would be DCED in its entirety including, but not limited to, the GCLCS. 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. 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 w►11 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