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HomeMy WebLinkAbout03-590 GarofaloDavid M. Garofalo 6506 Carmen Court Harrisburg, PA 17112 ADVICE OF COUNSEL September 11, 2003 03 -590 Re: Former Public Employee; Section 1103(g); Department of Public Welfare; Bureau of Infrastructure Management and Operations; Information Technology Generalist 2; COM3; Annuitant; 95 -Day Program; Independent Contractor. Dear Mr. Garofalo: This responds to your letters of August 8 and 12, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act "), 65 Ha.G.S. § 1101 et seq., presents any restrictions upon employment of an annuitant working in the capacity as a COM3 following termination of service with the Department of Public Welfare. Facts: Prior to your retirement on January 4, 2002, you were employed as an Nation Technology Generalist Administrator 2 with the Department of Public Welfare ( "DPW "), Bureau of Infrastructure Management and Operations, Division of Infrastructure Management. However, you were receiving out -of -class pay as Acting Director of the Bureau of Infrastructure Management and Operations. You have submitted a job description and organization chart for your former position as well as a DPW memorandum regarding your temporary assignment to higher classification, which documents are incorporated herein by reference. Since January 2002, you have been working as an annuitant with DPW under its 95 -day program. In your current position as a COM3, you continue to work on DPW's Disaster Recovery Program. You have submitted a copy of a Request for Employment of Annuitant, which outlines your current job responsibilities, which document is incorporated herein by reference. You ask whether, following your completion of the 95 -day program, you may, as an independent contractor continue to work on projects DPW has assigned to you. Garafalo, 03 -590 September 11, 2003 Page 2 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 liave 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. The submitted facts reflect that you retired from DPW on January 4, 2002, but returned to work for that agency as an annuitant under the "95 -day program." As to your subsequent return to work as a COM3 for DPW, you have once again become 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 your latest fob description, 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. See also, McGlathery, Opinion 00 -004. At such time as you cease working as an annuitant with DPW, you will become a "former public employee" subject to Section 1103(g) of the Ethics Act. McGlathery, supra; Graves, supra. The one -year period of applicability of Section 1103(g) will begin anew each time you become a "former public employee." Id. 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 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. Garafalo, 03 -590 September 11, 2003 Page 3 "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-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 /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 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 you would be associated upon termination of public service is DPW in its entirety including, but not limited to, the Bureau of Infrastructure Management and Operations, Division of Infrastructure Management. Garafalo, 03 -590 September 11, 2003 Page 4 Therefore, for the first year after termination of service with DPW, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DPW. As to the question you have posed, you may not, as an independent contractor, continue to work on projects DPW has assigned to you after completion of the 95 -day program as such conduct would involve prohibited representation before your former governmental body in contravention of Section 1103(g) of the Ethics Act. This conclusion follows Confidential Opinion, 93 -005, wherein the Commission addressed the question of whether under the Ethics Act, a former public employee could enter into a contract as a consultant to provide professional, technical or advisory services to his former governmental body within one year of termination of public service. The Commission stated, "We conclude that a public official /employee may not leave governmental service and provide consulting services as an individual to that body within one year of termination of governmental service because under such circumstances he would be acting on behalf of a person (himself)." Id. At 6. 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) oft the 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: As a COM3 with the Department of Public Welfare ( "DPW "), you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with DPW, you will become a "former public emplyee subject to Section 1103(g) of the Ethics Act. The former governmental body is DPW in its entirety including, but not limited to, the Bureau of Infrastructure Management and Operations, Division of Infrastructure Management. 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 Garafalo, 03 -590 September 11, 2003 Page 5 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