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HomeMy WebLinkAbout23-520 Baker PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: www.ethics.pa.gov TOLL FREE: 1-800-932-0936 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 11, 2023 To the Requester: MeeCee Baker, PhD President/Chief Executive Officer Versant Strategies, LLC 23-520 Dear Dr. Baker: This responds to your submission received March 20, 2023, 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 an individual with regard to performing work for his new employer, Versant Strategies, LLC, following termination of his employment as a District – Legislative Aide with the Republican Caucus of the Pennsylvania House of Representatives. Brief Answer: YES. During the first year following termination of the individual’s Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict the individual from engaging in any activity that would involve “representation” of a “person” — including but not limited to his new employer, Versant Strategies, LLC — before his “former governmental body,”which consists of the Pennsylvania House of Representatives in its entirety. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Baker, 23-520 April 11, 2023 Page 2 You are the President/Chief Executive Officer of Versant Strategies, LLC (the “Firm”). On March 7, 2023, you offered Derek Snyder (“Mr. Snyder”) employment as the Firm’s Chief Operations Manager. Mr. Snyder’s employment with the Firm was to begin on April 3, 2023. At the time that you offered Mr. Snyder employment with the Firm, he was employed as a District – Legislative Aide with the Republican Caucus of the Pennsylvania House of Representatives (“House”), in which capacity he worked for Representative Torren Ecker. You have submitted a copy of a position description for the position of District – Legislative Aidewith the Republican Caucus of the House, which document is incorporated herein by reference. As Mr. Snyder’s employer, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon Mr. Snyder with regard to performing work for the Firm during the first year following termination of his Commonwealth employment. In particular, you pose the following questions: (1) Whether Mr. Snyder would be permitted to organize and attend dinners with legislators if he would not speak about client business; (2) Whether Mr. Snyder would be permitted to attend and take notes at legislative hearings; (3) Whether Mr. Snyder would be permitted to serve as the Treasurer of the Firm’s political action committee; (4) Whether Mr. Snyder would be permitted to attend fundraisers if he would not speak about client business; and (5) Whether Mr. Snyder would be permitted to make appointments and help direct clients during Capitol Day visitations. 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. During Mr. Snyder’s employment as aDistrict – Legislative Aide with the Republican Caucus of the House, Mr. Snyder was 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 position description, which when reviewed on an objective basis, indicates clearly that the power existedto 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 Baker, 23-520 April 11, 2023 Page 3 other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of Mr. Snyder’s Commonwealth employment, Mr. Snyder became 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. Baker, 23-520 April 11, 2023 Page 4 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 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; Sharp, Opinion 90-009-R. The governmental body with which Mr. Snyder is deemed to have been associated upon termination of his Commonwealth employment is the House in its entirety, including but not limited to the Republican Caucus. Therefore, for the first year following termination of Mr. Snyder’s Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict Mr. Snyder from engaging in any activity that would involve “representation” of a “person” — including but not limited to the Firm — before the House. Baker, 23-520 April 11, 2023 Page 5 Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first question, you are advised as follows. To the extent that Mr. Snyder would attend a dinner with one or more legislators in his capacity as the Firm’s Chief Operations Manager, Mr. Snyder would be representing the Firm before the other attendees of the dinner, regardless of whether he would not speak about client business. Accordingly, during the first year following termination of Mr. Snyder’s Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit Mr. Snyder from organizing and attending any dinnerthat would include a Member of the House, as such activity would necessarily involve prohibited representation of the Firm before Mr. Snyder’s former governmental body, the House. Section 1103(g) would not prohibit Mr. Snyder from organizing and attending a dinner where the only legislators in attendance would be one or more Members of the Pennsylvania Senate or from speaking about client business at such a dinner. With respect to your second question, you are advised that Section 1103(g) of the Ethics Act would not prohibit Mr. Snyder from attending and taking notes at legislative hearings subject to the conditions that: (1) his attendance would not make known to the House his representation of, or work for, the Firm; and (2) he would not otherwise engage in any conduct that would constitute prohibited representation before the House as delineated above. In response to your third question, you are advised that Section 1103(g) of the Ethics Act would not prohibit Mr. Snyder from serving as the Treasurer of the Firm’s political action committee as long as in so doing, he would not engage in prohibited representation before the House. As to your fourth question, you are advised as follows. In attending a fundraiser in his capacity as the Firm’s Chief Operations Manager, Mr. Snyder would be representing the Firm before the other attendees of the fundraiser. Section 1103(g) of the Ethics Act would prohibit Mr. Snyder from attending fundraisers unless he would be able to do so without engaging in prohibited representation before the House. If Members or staff of the House would be in attendance at a fundraiser, it would be difficult if not impossible as a practical matter for Mr. Snyder to attend the fundraiser without running afoul of Section 1103(g), even if he would not speak about client business. If Mr. Snyder’s attendance at such a fundraiser would make known to Members or staff of the House his work for the Firm, such would necessarily involve prohibited representation before the House. With respect to your fifth question, you are advised that Section 1103(g) of the Ethics Act would prohibit Mr. Snyder from making appointments and helping direct clients during Capitol Day visitations unless he would be able to do so without making known to the House his representation of, or work for, the Firm or otherwise engaging in any conduct that would constitute prohibited representation before the House. 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. Baker, 23-520 April 11, 2023 Page 6 Conclusion: During Mr. Snyder’s employment as a District – Legislative Aide with the House Republican Caucus, Mr. Snyder was considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of Mr. Snyder’s Commonwealth employment, Mr. Snyder became a “former public employee” subject to Section 1103(g) of the Ethics Act. Mr. Snyder’s former governmental body isthe House inits entirety, including but not limited tothe Republican Caucus. For the first year following termination of Mr. Snyder’s Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrictMr. Snyder from engaging in any activity that would involve“representation” of a “person” — including but not limited to Mr. Snyder’s new employer, the Firm — before the House. The restrictions as to representation outlined above must be followed. 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 receivedat 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, Bridget K. Guilfoyle Chief Counsel