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HomeMy WebLinkAbout22-516 Kishbaugh 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 March 31, 2022 To the Requester: Kay E. Kishbaugh 22-516 Dear Kay E. Kishbaugh: This responds to your letter dated March 14, 2022, 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 restrictions upon you with regard to working as a consultant to the Pennsylvania Department of State following termination of service with the Department of State as an annuitant under the 95- Brief Answer: YES. During the first year following termination of your service with the Department of State as an annuitant, Section 1103(g) of the Ethics Act would apply and prohibit you from working as a consultant to the Department of State as such activity would constitute prohibited representation of a person specifically, yourself as a consultant before your former governmental body, the Department of State. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. In August 2019, you retired from your employment with the Pennsylvania Department of Transportation. In October 2020, you returned to work with the Department of State as an Kishbaugh, 22-516 March 31, 2022 Page 2 annuitant under the 95-rovision at 71 Pa.C.S. § 5706(A.1) - Director of the Bureau of Corporations and Charitable Organizations within the Department of State. From October 2021 to the present, you have served as the Executive Assistant to the Deputy Secretary for Regulatory Programs. You have submitted a copy of a position description (the by reference. A copy of the job classification specifications for the position of Executive Assistant (job code 08260) has been obtained and is also incorporated herein by reference. Because you are involved in multiple modernization efforts, you were asked if you would consider working as a consultant to the Department of State under the Commonwealth OST contract once your service as an annuitant has terminated. This is primarily because your annuitant service would terminate prior to one modernization effort going live in September 2022 and while the other modernization effort is still in the requirement gathering stage. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you following termination of your service as an annuitant under the 95-day Annuitant Program. In particular, you ask whether you would be permitted to work as a consultant to the Department of State under the Commonwealth OST contract. 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. When an individual who has retired from Commonwealth employment returns to Commonwealth service as an annuitant to perform services see eSee, Graves, Opinion 00-009; McGlathery, Opinion 00-004. Based upon the duties and authority set forth in the Position Description and the job classification specifications for the position of Executive Assistant, the necessary conclusion is that when you commenced providing services to the Department of State as an annuitant in the position of Executive Assistant to the Deputy Secretary for Regulatory Programs, you became a Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Graves, supra; McGlathery, supra. Consequently, Kishbaugh, 22-516 March 31, 2022 Page 3 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. 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; Kishbaugh, 22-516 March 31, 2022 Page 4 (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. 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 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 rest 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 service as an annuitant with the Department of State would be the Department of State in its entirety. Therefore, until the expiration of a full one-year period following termination of your service as an annuitant with the Department of State, Section 1103(g) of the including but not limited to yourself before the Department of State. (It is noted that if you would return to work with the Kishbaugh, 22-516 March 31, 2022 Page 5 Department of State as an annuitant prior to the expiration of the one-year period, the restrictions of Section 1103(g) of the Ethics Act would cease to apply to you.) You are advised that during the first year following termination of your service as an annuitant with the Department of State, Section 1103(g) of the Ethics Act would prohibit you from working as a consultant to the Department of State under the Commonwealth OST contract as such activity would constitute prohibited representation of a person specifically, yourself as a consultant before your former governmental body, the Department of State. See, Shaub, supra; Claycomb, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. 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: When you commenced providing services to the Department of State as an annuitant under the 95-day Annuitant Program in the position of Executive Assistant to the Deputy Secretary for Regulatory Programs, you became Regulations of the State Ethics Commission. When you would cease providing such services to to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your service as an annuitant with the Department of State would be the Department of State in its entirety. Therefore, until the expiration of a full one- year period following termination of your service as an annuitant with the Department of State, including but not limited to yourself before the Department of State. The restrictions as to representation outlined above must be followed. During the first year following termination of your service as an annuitant with the Department of State, Section 1103(g) of the Ethics Act would prohibit you from working as a consultant to the Department of State under the Commonwealth OST contract as such activity would constitute prohibited representation of a person specifically, yourself as a consultant before your former governmental body, the Department of State. 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. Kishbaugh, 22-516 March 31, 2022 Page 6 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, Martin W. Harter Acting Chief Counsel