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HomeMy WebLinkAbout03-561 LaTorreDavid La Torre 8470 Kensi Court Hummelstown, PA 17036 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 11030); Press Secretary to the Governor; Temporary Position with Governor's Transition Office. Dear Mr. La Torre: ADVICE OF COUNSEL June 19, 2003 03 -561 This responds to your letters received April 28, 2003, and May 19, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 § 1101 et seq., presents any restrictions upon employment of the Press Secretary to the Governor following termination of such service. Facts: As the former Press Secretary to Governor Mark Schweiker, you request advisory from the State Ethics Commission regarding the post - employment restrictions of the Ethics Act. As Press Secretary to the Governor, you held a senior staff level position. Your responsibilities included, inter alia: (1) oversight of all state agency press offices directly under the Governor's jurisdiction; (2) final sign -off on all public relations /advertising contracts for state agencies directly under the Governor's jurisdiction; and (3) direct supervision over the day -to -day operation of all agency communications departments under the Governor's jurisdiction. You state that during your tenure as press secretary, you did not "weigh in" on any RFP or proposals submitted in response to an RFP. You were not part of any process to award public relations /marketing contracts. However, your signature was required to release payment(s). Your duties as Press Secretary to the Governor ended on January 21, 2003. Currently, you hold a temporary position in Governor Schweiker's Transition Office for which you receive an hourly wage from the Auditor General's office. The temporary position ends on June 30, 2003, and does not include any of the responsibilities you previously had as Press Secretary to the Governor. Your work in the Transition Office is primarily an archival position that involves collecting, cataloging, and depositing in the state archives documents, videos, and CDs containing historical information from the Schweiker Administration. You are also composing a summary of the Schweiker Administration's tenure for the archives. La Torre 03 -561 June 19, 2003 Page 2 In July you will leave Commonwealth employment and will begin working in Harrisburg for a public relations firm. Your duties will include securing public relations contracts in both the public and private sectors and managing customer accounts. Based upon the above, you request an advisory regarding any restrictions that would apply to you under the Ethics Act. 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. In the former capacity as Press Secretary to Governor Mark Schweiker, 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. In your current temporary position with the Governor's Transition Office, your responsibilities are such that you would not be considered a public official /public employee or an "executive -level State employee" as those terms are defined in the Ethics Act. Id. Consequently, as of January 21, 2003, when you terminated your service as Press Secretary to Governor Mark Schweiker, you became 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. (The fact that you continued to work in a temporary, non - covered position with the Governor's Transition Office would not alter the point at which you became a former public official /public employee and a former executive -level State employee for purposes of applying the post - employment restrictions 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). La Torre 03 -561 June 19, 2003 Page 3 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 question is a client of the new employer, rather than the new employer itself. See, Confidential Opinion, 94 -011. However, Section 11030) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a public relations firm or its client(s) provided and conditioned upon the assumptions that you did not actively participate in recruiting the public relations firm or such client(s) to Pennsylvania, and that you did not actively participate in recruiting or inducing the public relations firm or such client(s) 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 the public relations firm or such client(s). 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 1Dy 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. La Torre 03 -561 June 19, 2003 Page 4 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; (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 are considered to have been associated upon termination of public service, hereinafter referred to as "your former governmental body," is the Governor's Office in its entirety and all of the agencies under the Governor's jurisdiction as to which you had authority to review and approve contracts. Therefore, for the first year following termination of your service as Press Secretary to Governor Schweiker, Section 1103(g) of the Ethics Act would apply and restrict 'representation" of "persons," including but not limited to an employer or client(s), before your former governmental body as identified above. Based upon the facts that 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 La Torre 03 -561 June 19, 2003 Page 5 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 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As of January 21, 2003, when you terminated your service as Press Secretary to Governor Mark Schweiker, you became a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103 i) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1103(8 ), (i). The fact that you continued to work in a temporary, non - covered position with the Governor's Transition Office would not alter the point at which you became a former public official /public employee and a former executive -level State employee for purposes of applying the post - employment restrictions of the Ethics Act. 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 a public relations firm or its client(s), provided and conditioned upon the assumptions that you did not actively participate in recruiting the public relations firm or such client(s) to Pennsylvania, and that you did not actively participate in recruiting or inducing the public relations firm or such client(s) 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 the public relations firm or such client(s). With regard to Section 1103(g), the restrictions as outlined above must be followed. The governmental body with which you are considered to have been associated upon termination of service as Press Secretary to Governor Schweiker, hereinafter referred to as "your former governmental body," is the Governor's Office in its entirety and all of the agencies under the Governor's jurisdiction as to which you had authority to review and approve contracts. For the first year following termination of the aforesaid service, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons," including but not limited to an employer or client(s), before your former governmental body as identified above. 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. La Torre 03 -561 June 19, 2003 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. Sincerely, Vincent J. Dopko Chief Counsel