HomeMy WebLinkAbout03-568 LouxSteven B. Loux
22 Beacon Drive
Harrisburg, PA 17112
ADVICE OF COUNSEL
July 1, 2003
03 -568
Re: Former Public Official /Public Employee; Section 1103(); Executive -Level State
Employee; Section 1103(i); Assistant Small Business Advocate; Office of Small
Business Advocate; DCED.
Dear Mr. Loux:
This responds to your letter of June 11, 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. § 1101 et seq., presents any restrictions upon employment of an Assistant Small
Business Advocate following termination of service with the Office of Administration.
Facts: Through November 22, 2002, you were employed by the Governor's
1 Office as Senior Policy Manager for Economic Development. Classified as ay
scale 99, according to the Administrative Services Office within the Governor's Office,
there is no formal job description kept for this position. You have attached a copy of the
part of your 2001 annual performance review describing your policy focus and major
initiatives in which you were engaged. You have also attached the first page of your
resume which describes your work in this position.
From November 25, 2002, through April 11, 2003, you were employed as an
Assistant Small Business Advocate by the Office of Small Business Advocate,
technically housed within the Department of Community and Economic Development
(DCED). You have also enclosed a job description for this position, which is
incorporated herein by reference.
You request an advisory regarding he limitations the Ethics Act will impose upon
you in lobbying Commonwealth agencies following termination of service.
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
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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 Assistant Small Business Advocate in the Office of
Small Business Advocate, 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.
Consequently, upon termination of public service, 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 Ethics Act.
Section 1103(i) 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. § 1103(i).
Section 1103(i) 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 1103(i)
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 No. 94 -011. However, Section 1103(i) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for a new employer provided and conditioned upon the
assumptions that you did not actively participate in recruiting the new employer to
Pennsylvania, and that you did not actively participate in recruiting or inducing the new
employer 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 new employer.
Unlike Section 1103(i), 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
Loux, 03 -568
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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 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 /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
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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 were associated upon termination of
public service is the DCED in its entirety. Therefore, for the first year after termination
of your service with the Office of Small Business Advocate, Section 1103(g) of the
Ethics Act would apply and restrict "representation" of "persons" before the DCED.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Sections 1103(g) and 1103(i) 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 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.
Conclusion: Upon termination of service as Assistant Small Business Advocate
with the Office of Small Business Advocate, you would become 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. § 1101 et seq. Under Section 1103(i) 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 new employer based upon the
assumptions that you did not actively participate in recruiting the new employer to
Pennsylvania, and that you did not actively participate in recruiting or inducing the new
employer 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. With regard to Section 1103(g), the restrictions as outlined above must
be followed. The former governmental body is the Department of Community and
Economic Development. The propriety of the proposed conduct has only been
addressed under the Ethics Act.
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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