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HomeMy WebLinkAbout22-512 CollinsPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL March 11, 2022 To the Requester: Dear Ms. Sheri R. Collins: 22-512 This responds to your correspondence received February 22, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issue presented below: Issue: Facts: Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you with regard to accepting full-time employment with or serving as an independent contractor to an entity following termination of your employment as the Senior Director of the Office of Corporate Relations of the Pennsylvania Department of Community and Economic Development (DCED)? Brief Answer: YES. During the first year following termination of your employment with DCED, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to a new employer or yourself as an independent contractor before DCED. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: For the last 35 years you have been employed by the Commonwealth of Pennsylvania, most recently as the Senior Director of the Office of Corporate Relations within DCED. You have submitted a copy of a "Proposed Position Description" for your current position with DCED, which is incorporated herein by reference. Collins 22-512 March 11, 2022 Page 2 In your current position with DCED, you work to support Pennsylvania companies by introducing them to other agencies, including the Pennsylvania Department of Health, the Pennsylvania Department of Transportation, and the Pennsylvania Department of Conservation and Natural Resources. You also provide mentorship to Pennsylvania's small businesses by introducing them to a variety of economic development programs and partners across the Commonwealth. In your role with DCED, you currently serve as a Member of the Board of the Pittsburgh Supercomputing Center, which is a joint computational research center with Carnegie Mellon University and the University of Pittsburgh. You further serve as a Member of the Board of the Pennsylvania Recycling Markets Center, which is a non-profit 501(c)(3) corporation. You additionally serve on a broadband -focused steering committee for the Southwestern Pennsylvania Commission, which is one of Pennsylvania's seven local development districts established pursuant to the Local Development District Act, 73 P.S. § 801. Since 2015, you have served as the Governor's State Alternate to the Appalachian Regional Commission, an economic development partnership agency of the federal government and thirteen state governments which is focused on 423 counties across the Appalachian region. During 2019, you were the Acting Executive Director of the Governor's Office of Broadband Initiatives. As the Senior Director of the Office of Corporate Relations, you collaborate with the Secretary of DCED, the Executive Deputy Secretary of DCED, the Governor's Action Team, and other offices. Your role is focused on relationship building with Pennsylvania companies and companies outside of Pennsylvania which are interested in learning more about the Commonwealth's programs and offerings. You state that "warm leads" are handed off to other offices within DCED for further evaluation and possible investment or grant awards. All investing decisions are made by the Secretary or the Executive Deputy Secretary of DCED through existing DCED processes. During the COVID-19 pandemic, the Governor's Office asked you to investigate the possibility of the Commonwealth applying for funds from the federal government in relation to the need for Pennsylvanians to have access to affordable high-speed internet. After multiple conversations with the Governor's Office and others involved in broadband initiatives, you released a survey to individuals and organizations across Pennsylvania that have expressed an interest in broadband expansion. The purpose of the survey was to share information about the National Telecommunications and Information Administration's (NTIA's) Broadband Infrastructure Program (Program) and to gauge interest from other entities which wanted to participate in the funding opportunity either directly or as a partner of DCED on behalf of the Commonwealth. The Program is a $288 million broadband deployment program directed to partnerships between a state, or one or more political subdivisions of a state, and providers of fixed broadband service to support broadband infrastructure deployment to areas lacking broadband, especially rural areas. As a result of the circulation of the survey, Comcast, Community Media, McKean County, DRIVE, Blue Fiber/Youngsville Television, Indiana County, and Green Valley Communications stepped forward to participate in DCED's application to NTIA for funding for broadband projects. Collins 22-512 March 11, 2022 Page 3 On or about August 17, 2021, DCED submitted an application to NTIA for approximately $34.4 million in funding. Community Media later withdrew from the process. NTIA has not yet awarded any funds to DCED in relation to the application. You recently informed DCED of your plans to retire from your Commonwealth employment. You would like to be advised as to what, if any, restrictions the Ethics Act would impose upon you following termination of your employment with DCED. Specifically, you would like advice and guidance as to the following questions: 1. Would you be able to accept full-time employment with or serve as an independent contractor to federal agencies such as NTIA or the Appalachian Regional Commission? 2. Would you be able to accept full-time employment with or serve as an independent contractor to any of the seven initial participants in DCED's application to NTIA for broadband project funding? 3. Would you be able to accept full-time employment with or serve as an independent contractor to any Pennsylvania -based organizations with which you have worked over the past 35 years of your Commonwealth employment, including during your employment with DCED? 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 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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: Collins 22-512 March 11, 2022 Page 4 § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made 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 questions presented. As the Senior Director of the Office of Corporate Relations within DCED, you are a "public 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. This conclusion is based upon the submitted facts, 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) where the economic impact is greater than de minimis on the interests of another person. Collins 22-512 March 11, 2022 Page 5 Consequently, upon termination of your employment with DCED, you will 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 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. 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. Collins 22-512 March 11, 2022 Page 6 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; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89-005; Edley, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. 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 would be deemed to have been associated upon termination of your employment with DCED will be DCED in its entirety, including but not limited to the Office of Corporate Relations. Therefore, for the first year following termination of your employment with DCED, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to a new employer or yourself as an independent contractor before DCED. Collins 22-512 March 11, 2022 Page 7 Turning to your specific questions, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from accepting full-time employment with, or serving as an independent contractor to, federal agencies (such as NTIA or the Appalachian Regional Commission), the seven initial participants in DCED's application to NTIA for funding for broadband projects, or Pennsylvania -based organizations with which you worked during your Commonwealth employment. However, during the first year following termination of your employment with DCED, Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would involve "representation" of your new employer or yourself as an independent contractor before DCED as outlined above. With regard to Section 1103(a) of the Ethics Act, you are generally advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your prospectively entering into a business/employment relationship with an entity subject to the conditions that you: (1) did not use the authority of your public position with DCED in matter(s) pertaining to the entity when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with the entity or would otherwise receive a private pecuniary benefit relating to the entity; and (2) did not otherwise use the authority of your public position with DCED or confidential information received as a result of being in your public position with DCED in furtherance of securing a business/employment arrangement with the entity or other private pecuniary benefit relating to the entity. Cf., Desmond, Opinion 08-004. 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: Upon termination of your employment as the Senior Director of the Office of Corporate Relations within DCED, you will become a "former public employee" subject to the Ethics Act, 65 Pa.C.S. § 1101 et SeMc ., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Your former governmental body will be DCED in its entirety, including but not limited to the Office of Corporate Relations. For the first year termination of your employment with DCED, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to a new employer or yourself as an independent contractor before DCED. The restrictions as to representation outlined above must be followed. The elements of a violation of Section 1103(a) of the Ethics Act (pertaining to conflict of interest) would not be established as a result of your prospectively entering into a business/employment relationship with an entity subject to the conditions that you: (1) did not use the authority of your public position with DCED in matter(s) pertaining to the entity when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with the entity or would otherwise receive a private pecuniary benefit relating to the entity; and (2) did not otherwise use the authority of your public position with DCED or confidential information received as a result of being in your public position with DCED in furtherance of Collins 22-512 March 11, 2022 Page 8 securing a business/employment arrangement with the entity or other private pecuniary benefit relating to the entity. 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. RespectfullyaCounse