HomeMy WebLinkAbout24-541 CarpenterPHONE: 717-783-1610
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To the Requester:
Belinda S. Carpenter
Dear Ms. Carpenter:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
May 24, 2024
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.ya.�4ov
24-541
This responds to your letter dated May 10, 2024, by which you requested an advisory from
the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue
presented below:
Issue:
Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et
sec would impose restrictions upon you with regard to providing services to the
Pennsylvania Department of Education ("Department of Education") through a vendor
following termination of your employment as a Database Administrator 2 for the General
Government IT Delivery Center under the Governor's Office of Administration ("Office
of Administration"), in which capacity you primarily provide server/database support to
the Department of Education.
Brief Answer: YES. During the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would restrict you from providing services
to the Department of Education through a vendor, as such activity would constitute
prohibited "representation" of a "person" specifically, the vendor before your
"former governmental body," which would consist of: (1) the Office of Administration in
its entirety, including the General Government IT Delivery Center; and (2) the Department
of Education.
Facts:
You request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows.
Carpenter, 24-541
May 24, 2024
Page 2
You are currently employed as a Database Administrator 2 with the General Government
IT Delivery Center under the Office of Administration, in which capacity you primarily provide
server/database support to the Department of Education. You have submitted a copy of a position
description for your Commonwealth position, which document is incorporated herein by reference.
It is noted that per the position description, you are responsible for managing the databases and
database servers used for over 65 internal and internet facing/external systems used by the
Department of Education. The position description provides that you direct and participate in
highly advanced technical work to plan, design, implement, maintain, and protect the application
databases for the Department of Education and other agencies within the General Government IT
Delivery Center when necessary.
You plan to retire from your Commonwealth employment on June 15, 2024. The
Department of Education is interested in having you return as a subject matter expert following
your retirement to share your many years of experience with current and new employees. You
would not be able to perform such services as an annuitant as you would not meet either the
requirement of being over the normal retirement age of 60 or the requirement of having been retired
for more than one year.
As you would not be able to work as an annuitant, you are contemplating joining a vendor,
SS IT Consulting LLC ("the Vendor"), which could permit you to be considered for a position
posted by the Department of Education. The position would be that of a "Functional Architect"
and would involve working through a part-time staff augmentation contract for up to fifteen hours
a week.
You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions
upon you with regard to providing services to the Department of Education through the Vendor
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. §§ l l07(10), (l l). An advisory
only affords a defense to the extent the requester has truthfully disclosed all of the material facts.
As a Database Administrator 2 for the General Government IT Delivery Center under the
Office of Administration, you are 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 exists to 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
other activity(ies) where the economic impact is greater than de minimis on the interests of another
person.
Carpenter, 24-541
May 24, 2024
Page 3
Consequently, upon termination of your Commonwealth employment, you would become
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.
The term "represent" is also broadly defined to prohibit acting on behalf of any person in
y activity. Examples of prohibited representation include: (1) personal appearances before the
Carpenter, 24-541
May 24, 2024
Page 4
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 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.
Under the submitted facts, the governmental body with which you would be deemed to
have been associated upon termination of your Commonwealth employment, hereinafter
collectively referred to as "your former governmental body," would consist of: (1) the Office of
Administration in its entirety, including the General Government IT Delivery Center; and (2) the
Department of Education in its entirety. Therefore, for the first year following termination of your
Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of a "person" including but not limited to yourself or a new employer before
your former governmental body.
You are advised that during the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would prohibit you from providing services to the
Department of Education through the Vendor, as such activity would involve prohibited
representation of a person namely, the Vendor before your former governmental body.
Carpenter, 24-541
May 24, 2024
Page 5
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:
As a Database Administrator 2 for the General Government IT Delivery Center under the
Office of Administration, you are a "public employee" subject to the Ethics Act and the
Regulations of the State Ethics Commission. Upon termination of your Commonwealth
employment, you would become a "former public employee" subject to Section 1103(g) of the
Ethics Act. Under the submitted facts, the governmental body with which you would be deemed
to have been associated upon termination of your Commonwealth employment, hereinafter
collectively referred to as "your former governmental body," would consist of: (1) the Office of
Administration in its entirety, including the General Government IT Delivery Center; and (2) the
Department of Education in its entirety. For the first year following termination of your
Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of a "person" including but not limited to yourself or anew employer before
your former governmental body. The restrictions as to representation outlined above must be
followed. During the first year following termination of your Commonwealth employment,
Section 1103(g) of the Ethics Act would prohibit you from providing services to the Department
of Education through the Vendor, as such activity would involve prohibited representation of a
person namely, the Vendor before your former governmental body.
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