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HomeMy WebLinkAbout03-574 ConfidentialADVICE OF COUNSEL July 30, 2003 Re: Former Public Employee; Section 1103(g); Supervisor; A. (CONFIDENTIAL - NOT TO BE DISSEMINATED TO THE PUBLIC) 03 -574 This responds to your letters of June 24, and July 3, 2003, by which you requested confidential 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 a supervisor following termination of service with the A. Facts: You are requesting an advisory in connection with the retirement of B, as an employee of A. B has been a Commonwealth employee since (date). He retired from Commonwealth service as of (date); however he has remained in service as an annuitant employee from (date) through his expected departure on (date). During his Commonwealth employment, B has held various positions within A, most recently serving as a Supervisor in the D. In this capacity, B oversaw technical aspects and dealt directly with the analytical aspects of C administered by A. B supervised approximately three Commonwealth personnel and reported to the Division Chief. All policy decisions were made at a higher level than B. During his tenure with A, B has had dealings with certain Commonwealth vendors, including E. E works in many states in connection with R and has worked with A since (date) as the primary contractor for the F. The F is a G. The F is offered to H. Approximately (number) participate in the I. In addition to the I, the F consists of J. Approximately, K. E is responsible for the L. In addition, E has M. In his capacity as a S Supervisor, B has had regular interaction with E personnel in connection with N. B was not the contracting officer for A and was not part of the selection committee for the O. Confidential Advice 03 -574 July 30, 2003 Page 2 Upon B's termination of Commonwealth service, effective (date) he plans to assume the position of a P with E. Consequently, you seek an advisory as to permitted activities during the first year following B's departure from A. After quoting Section 1103(g) of the Ethics Act, you seek an advisory with respect to the proposed employment of B by E and the extent to which he may interact with A during the first year following his conclusion of Commonwealth service. Although the position would include working on statewide programs in several other states, it is expected that he would have some duties relating to the U. Specifically, the proposed job description of B includes: • Providing technical support to A and internal E staff, including quality checking of Q; • Writing technical reports and /or preparing presentations for A, focused on the interpretation of Q; • Suggesting additional studies or activities to strengthen assigned T; • Collaborating with A Project Manager to determine the design, analysis and evaluation of the systems, processes and services required to meet contract requirements; • Monitor and communicate A issues to E, related to assigned T; and • participating and contributing to the design of a business strategic plan for T. You seek to ensure that B's future activities are consistent with the requirements of the Ethics Act. You acknowledge that B would expect to attend certain 0 meetings and otherwise interact with A personnel; however, issues relating to contract administration — including all aspects of contract extension, amendment, modification, and compliance — or matters requiring A determination would be handled by others within E, at least for a period of one year. You conclude that the above - referenced essential duties consist primarily of technical services of a non - policy nature, which would not constitute "representing" E before A. 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 S Supervisor for A, B 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 c 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. Consequently, upon termination of public service, B 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 (CONFIDENTIAL - NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice 03 -574 July 30, 2003 Page 3 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 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 /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 (CONFIDENTIAL - NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice 03 -574 July 30, 2003 Page 4 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 /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 B would be associated upon termination of public service is A in its entirety. Therefore, for the first year after termination of service with A, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the A. As to the matter of B attending meetings and having interaction with A personnel which are described as non-policy technical services, the Commission has held that such interaction is prohibited by Section 1103(g) of the Ethics Act. See, Confidential Opinion 02 -001 wherein the full Commission opined: You are further advised that during the first year following termination of your Commonwealth service, the Ethics Act would prohibit you from: (1) briefing officials in your former governmental body on G initiatives that Private Entity T might be undertaking in DD; (2) seeking or receiving input from officials in your former governmental body regarding a Private Entity T G initiative or problem; or (3) informing officials in your former governmental body as to what Private Entity T is doing on a G matter in DD. All such activities would constitute "representation" before your former governmental body and would be prohibited during the one - year period of applicability of Section 1103(g) of the Ethics Act. Confidential Opinion 02 -001 at 6. Accordingly, attending meetings and having interaction on behalf of his new employer with A, his former governmental body, would be prohibited by Section 1103(g) of the Ethics Act. 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 (CONFIDENTIAL - NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice 03 -574 July 30, 2003 Page 5 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 S Supervisor with the A, B would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seqq. Upon termination of service with the A, B became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the A in its entirety. 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 (CONFIDENTIAL — NOT TO BE DISSEMINATED TO THE PUBLIC)