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HomeMy WebLinkAbout03-528 HickesRobert C. Hickes 95 Brindle Road Mechanicsburg, PA 17055 Dear Mr. Hickes: ADVICE OF COUNSEL March 21, 2003 03 -528 Re: Former Public Employee; Section 1103(g); Deputy Commissioner of Staff; Major; Pennsylvania State Police. This responds to your letter of February 13, 2003, 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. 1 et seq., presents any restrictions upon employment of a Deputy Commissioner of taff following termination of service with the Pennsylvania State Police. Facts: On January 3, 2003, after 30 years of service, you retired from employment with if a Iennsylvania State Police. You have submitted a copy of the job description and organization chart for your former position, which documents are incorporated herein by reference. From October 1988 until November 2002, you were working as the Deputy Commissioner of Staff for the Executive and Administrative Offices of the Pennsylvania State Police, in which position, you were classified as Lieutenant Colonel. Effective November 22, 2002, you reverted to the rank of Major and ceased any involvement with negotiating or contracting for the State Police. In a telephone conversation with Assistant Counsel for this Commission on March 18, 2003, you clarified that although your class title changed from Lieutenant Colonel to Major on November 22, 2002, your working title remained Deputy Commissioner of Staff until your retirement. You further clarified that the job description which you submitted is your most recent job description. Per your job description, your responsibilities included, inter alia, assisting the Commissioner in the development and implementation of strategic goals and objectives for the Department, which involved defining the mission of the Pennsylvania State Police and identifying the priorities of the administration relative to the ultimate goal of maximizing the police services provided to the citizens of the Commonwealth; assisting the Commissioner in formulating policies and regulations to ensure that the Department remains aligned with the policies of the Governor's Office and that Department resources are used effectively; coordinating and directly supervising the Bureaus of Research and Development, Forensic Services, Staff Services, Technology Services, and Records Identification; and monitoring all Department policies and regulations to determine their impact on areas of authority under the Deputy Commissioner of Staff, and coordinating with all organizational segments, law Hickes, 03 -528 March 21, 2003 Page 2 enforcement agencies, criminal justice agencies, other governmental agencies, and private enterprises to ensure uniformity and consistency throughout the Department. In addition to serving as Deputy Commissioner for Staff, you served as the Chairperson of the Commonwealth of Pennsylvania Justice Network ( "J- NET "), an Office of Administration, Office of Information Technology -based initiative, which involved integration of Pennsylvania's criminal justice information. You state that as Chairperson, you did not have a vote on any decisions including contracts. You state that J -NET recently contacted the states surrounding Pennsylvania to explore exchanging criminal justice information between the states. J -NET has asked you whether you would be interested in working as a Project Manager for the interstate initiative. You maintain that as Project Manager for J -NET, you would have no involvement in contracting with any vendor. You seek guidance as to the post - employment restrictions that apply to you under the Ethics Act. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the i - 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. In the former capacity as Deputy Commissioner of Staff for the Executive and Administrative Offices of the Pennsylvania State Police, you would be considered 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 job eci cription, which when reviewed on an objective basis, indicates 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; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. In addition, as Chairperson of the Commonwealth of Pennsylvania Justice Network ( "J- NET "), you would be considered a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission. Consequently, upon termination of public service, you became a "former public official /employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not rohibit 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). Hickes, 03 -528 March 21, 2003 Page 3 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 employee himself, 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 /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. 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. Hickes, 03 -528 March 21, 2003 Page 4 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; Sharp, Opinion 90- 009 -R. The governmental body with which you were associated upon termination of public service is the Pennsylvania State Police in its entirety including, but not limited to, the Executive and Administrative Offices of the Pennsylvania State Police, and J -NET. Therefore, for the first year after termination of service with the Pennsylvania State Police, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Pennsylvania State Police and J -NET. Having set forth the above general principles, the specific activity which you have proposed shall now be addressed. You state that J -NET has asked you whether you are interested in working as a Project Manager for the interstate initiative. You do not indicate what the nature of your relationship with J -NET would be in performing such services. It would seem that you might be considering three types of arrangements: (1) performing such services without compensation; (2) performing such services for compensation under the 95 -day program which allows annuitants to work up to 95 days per fiscal year under certain conditions (see, 71 Pa.C.S. § 5706(a.1); McGlathery, Opinion 00 -004); or (3) performing such services compensation as an independent contractor. Each of these arrangements shall be considered. First, you are advised that Section 1103(g) of the Ethics Act would not preclude you from performing such services free of charge, because Section 1103(g) only applies to restrict a former public official /public employee when the representation before the former governmental body is with "promised or actual compensation.' 65 Pa.C.S. § 1103(g). Second, based upon the assumptions that in performing these duties you would continue to meet the criteria for status as a "public employee" and that you would otherwise qualify for participation in the program, Section 1103(g) of the Ethics Act would not preclude you from performing such services for compensation under the aforesaid 95 -day program which allows annuitants to work up to 95 days per fiscal year. Section 1103(g) does not prohibit the rehiring of the former public employee provided that a true public employment relationship exists. See, McGlathery, supra; Long, Opinion 97 -010; Confidential Opinion, 93- 005. However, each time you would enter the 95 -day program, you would become a "public employee" again, and each time you would terminate your service under that program, you would once again become a former public employee subject to the restrictions of Section 1103(g). McGlathery, Opinion 00 -004. You are cautioned that the restrictions of Section 1103g would apply for a full one -year period each time you would become a former public employee. Id. Thus, as a result of participation in the 95-day program, the one -year period of applicability of Section 1103(g) would begin anew each time you would terminate participation in the 95 -day program. Finally, you are advised that Section 1103(g) of the Ethics Act would preclude you from performing such services for compensation as an independent contractor. To perform such services as an independent contractor would transgress Section 1103(g) because it would necessarily involve prohibited representation before your former governmental body (for example, through personal appearances before your former governmental body or the submission of written documents containing your name to "assigned reviewers" who would clearly be DEP staff members). See, Confidential Opinion, 97 -008; Confidential Opinion, 97- 007; Confidential Opinion, 93 -0057 Hickes, 03 -528 March 21, 2003 Page 5 Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(g) 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 /public employee 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 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: In the former capacity as Deputy Commissioner of Staff for the Executive and Administrative Offices of the Pennsylvania State Police, you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with the Pennsylvania State Police, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Pennsylvania State Police in its entirety including, but not limited to, the Executive and Administrative Offices of the Pennsylvania State Police, and the Commonwealth of Pennsylvania Justice Network. The restrictions as to representation outlined above must be followed. 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 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