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HomeMy WebLinkAbout22-553 Foreman 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 December 16, 2022 To the Requester: Michael Foreman 22-553 Dear Mr. Foreman: This responds to your letter dated November 9, 2022, by which you requested an advisory , seeking guidance as to the issue presented below: Issue: Whether Section 1103(g) of the Public O 65 Pa.C.S. § 1103(g), would impose any prohibitions or restrictions upon you following your retirement from your employment as a Local Government Policy Specialist with the Pennsylvania Department of Community and Economic Development DCED and your subsequent service with DCED as an annuitant, carrying out special projects and training your successor. Brief Answer: YES. During the first year following termination of your service with DCED as an annuitant, Section 1103(g) of the Ethics Act would apply and restrict you from including but not limited to yourself or a new employer before DCED. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. Foreman, 22-553 December 16, 2022 Page 2 On April 1, 2022, you retired from your employment as a Local Government Policy Specialist with DCED after thirty-four years of employment. You have submitted a copy of your official DCED position description, which document is incorporated herein by reference. In May 2022, you returned to work with DCED as an annuitant. Your duties as an annuitant have included carrying out special projects and training your successor, as well as doing many of the duties set forth in the position description for a Local Government Policy Specialist. However, you are no longer actively involved in the review, management, and administration of DCED grant and loan programs to local governments throughout the southwest region. You state that your annuitant status with DCED will end on December 31, 2022. Following the end of your annuitant status, you might pursue consultant work with PP, providing professional services to local governments. Based upon the above submitted facts, you seek guidance as to whether Section 1103(g) of the Ethics Act would impose any prohibitions or restrictions upon you following termination of your service with DCED as an annuitant. In particular, you pose the following questions: (1) Whether the one-year post-employment restrictions of Section 1103(g) of the Ethics Act would apply to you as of April 1, 2022, when you retired from DCED, or as of December 31, 2022, when your annuitant status with DCED will end; (2) Whether the Ethics Act would permit you to be paid with DCED funds as a consultant with PP providing professional services to local governments as of January 1, 2023; (3) Whether the Ethics Act would permit you to do consulting work for PP through an open and competitive DCED selection process (Invitation to Quote ITQ) in which LGA is selected and in turn subsequently appoints PP to carry out professional services work in which you would be part of and would be paid from DCED funds flowing to LGA and then to PP for payment based upon a reimbursement request; and (4) If your proposed consulting work for PP would be prohibited to the extent you would be paid from DCED funds, whether you would be permitted to do consulting work for PP without compensation when DCED funds would be involved. 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 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 requester has truthfully disclosed all of the material facts. Foreman, 22-553 December 16, 2022 Page 3 When an individual who has retired from Commonwealth service returns to see See, Graves, Opinion 00-009, McGlathery, Opinion 00-004. Based upon the position description for your former position as a Local Government Policy Specialist for DCED and the submitted facts as to your duties and authority as an annuitant with DCED, carrying out special projects and training your successor, the necessary conclusion is that when you commenced providing services to DCED as an annuitant See, 65 Pa.C.S. § 1101; 51 Pa. Code § 11.1; Graves, supra; McGlathery, supra. Consequently, when you cease providing such annuitant services, you will become a 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 Section 1103(g) of the Ethics Act provides: § 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 following terms related to Section 1103(g) are 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. The governmental body within State government or a political subdivision by which Foreman, 22-553 December 16, 2022 Page 4 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 "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; (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 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/public Foreman, 22-553 December 16, 2022 Page 5 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 with DCED as an annuitant would be DCED in its entirety. Therefore, for the first year following termination of your service with DCED as an annuitant, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" including but not limited to yourself or a new employer before DCED. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be considered. Your first question has been addressed above. In response to your second and third questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from: (1) being paid with DCED funds as a consultant with PP providing professional services to local governments as of January 1, 2023; or (2) doing consulting work for PP through an open and competitive DCED selection process (Invitation to Quote ITQ) in which LGA is selected and in turn subsequently appoints PP to carry out professional services work in which you would be part of and would be paid from DCED funds flowing to LGA and then to PP for payment based upon a reimbursement request, subject to the condition that in performing such consulting work/professional services and/or being paid for such work/services, you would not engage in prohibited representation before DCED as set forth above. In response to your fourth question, you are advised that to the extent your proposed consulting work where you would be paid from DCED funds would cause you to engage in prohibited representation before DCED, Section 1103(g) of the Ethics Act would not prohibit you from performing such consulting work for PP without compensation. 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 than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: Based upon the submitted facts, when you commenced providing services to DCED as an annuitant, carrying out special projects and training your successor in the position of Local Government Policy Specialist, Regulations of the State Ethics Commission. When you cease providing such services to DCED, you will bec governmental body with which you would be deemed to have been associated upon termination of your service as an annuitant with DCED would be DCED in its entirety. Therefore, until the expiration of a full one-year period following termination of your service with DCED as an annuitant, including but not limited to yourself or a new employer before DCED. The restrictions as to representation outlined above must be followed. Foreman, 22-553 December 16, 2022 Page 6 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. Respectfully, Martin W. Harter Acting Chief Counsel