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HomeMy WebLinkAbout24-511 Chapman PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL March 11, 2024 To the Requester: Patricia Chapman 24-511 Dear Ms. Chapman: This responds to your letter received February 7, 2024, by which you requested an advisory , seeking guidance as to the issue presented below: Issue: Whether tet seq., would impose any prohibitions or restrictions upon you following your service as the November 11, 2022, through July 22, 2023, and as the Senior Advisor to the Chief Information Officer of the Office for Information Technology within the Governor 2024. Brief Answer: YES. As to your former position as the Acting Deputy Secretary for your service in that position on July 22, 2023, Section 1103(g) of the Ethics Act would s to your former position as the Senior Advisor to the Chief Information Officer of OIT, for a period of one year following termination of your employment in that position on January 12, 2024, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any Chapman, 24-511 March 11, 2024 Page 2 to OIT. As to your former position as the Acting Deputy Secretary for Information Technology, for a period of two years following termination of your Commonwealth service in that position on July 22, 2023, Section 1103(i) of the Ethics Act would restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business that you actively participated in recruiting to the Commonwealth or actively participated in inducing to open or expand a plant, facility, or branch in the Commonwealth through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. From November 11, 2022, through July 22, 2023, you served as the Acting Deputy limited to the Executive Offices. In that role, you were engaged in all aspects of information approximately $375 million. You then served as the Senior Advisor to the Chief Information Officer of OIT until January 12, 2024, when you retired from your Commonwealth employment. OIT develops and administers statewide policies and standards that govern the management, use and transformation of Commonwealth IT resources. OIT also provides direct oversight for large, enterprise-wide initiatives such as computer services, Commonwealth shared services, cyber security, and enterprise IT support, and it assists agencies in managing agency-specific projects. In each of your Commonwealth positions, you had signature authority for IT-related purchase orders and contracts. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you following termination of your Commonwealth employment. 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. Chapman, 24-511 March 11, 2024 Page 3 During your service as the Acting Deputy Secretary for Information Technology for the Goyou were considered a public official/public employee -level subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. During your subsequent employment as the Senior Advisor to the Chief Information Officer of OIT, you were considered a public employee subject to the provisions of 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 your service as the Acting Deputy Secretary for , you became a former public official/public employee and former executive-level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act with respect to that position. Additionally, upon termination of your employment as the Senior Advisor to the Chief Information Officer of OIT on January 12, 2024, you became a former public employee subject to the restrictions of Section 1103(g) of the Ethics Act as to that position. 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 a new employer, rather than the new employer itself. See, Confidential Opinion, 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 business subject to the conditions that you did not actively participate Chapman, 24-511 March 11, 2024 Page 4 in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business 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. 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 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 following terms related to Section 1103(g) are 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. mental body with which a public official or 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. Chapman, 24-511 March 11, 2024 Page 5 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 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 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 are deemed to have been associated upon termination of your service as the Acting Deputy Secretary for Information Technology for the governmental body with which you are deemed to have been associated upon termination of your subsequent employment as the Senior Advisor to the Chief Information Officer of OIT on January 12, 2024, is OA in its entirety, including but not limited to OIT. Therefore, until one year after termination of your service as the Acting Deputy Secretary for Information Technology for Chapman, 24-511 March 11, 2024 Page 6 Office on July 22, 2023, Section 1103(g) of the Ethics Act would apply and restrict you from representing a "person" on any matter before following termination of your employment as the Senior Advisor to the Chief Information Officer of OIT on January 12, 2024, Section 1103(g) of the Ethics Act would prohibit you from representing a "person" on any matter before OA. 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. Conclusion: During your service as the Acting Deputy Secretary for Information Technology for the you were considered a public -level subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. During your subsequent employment as the Senior Advisor to the Chief Information Officer of OIT, you were considered a public employee subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your service as the Acting Deputy Secretary for Information ice on July 22, 2023, you became a former public official/public employee and former executive-level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act with respect to that position. Additionally, upon termination of your employment as the Senior Advisor to the Chief Information Officer of OIT on January 12, 2024, you became a former public employee subject to the restrictions of Section 1103(g) of the Ethics Act as to that position. 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 business subject to the conditions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business 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. The governmental body with which you are deemed to have been associated upon termination of your service as the Acting Deputy Secretary for Information Technology for the governmental body with which you are deemed to have been associated upon termination of your subsequent employment as the Senior Advisor to the Chief Information Officer of OIT on January 12, 2024, is OA in its entirety, including but not limited to OIT. Therefore, until one year after termination of your service as the Acting Office on July 22, 2023, Section 1103(g) of the Ethics Act would apply and restrict you from representing a "person" of one year following termination of your employment as the Senior Advisor to the Chief Information Officer Chapman, 24-511 March 11, 2024 Page 7 of OIT on January 12, 2024, Section 1103(g) of the Ethics Act would prohibit you from representing a "person" on any matter before OA. 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 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. Respectfully, Bridget K. Guilfoyle Chief Counsel