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HomeMy WebLinkAbout04-560 ConfidentialADVICE OF COUNSEL June 10, 2004 Re: Former Public Employee; Section 1103(g); A Engineer; Department B. 04 -560 This responds to your letter of May 8, 2004, 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 an A Engineer following termination of service with Department B. Facts: You are currently employed as an A Engineer with Department B, having held said position since [month and year]. You have submitted a copy of your job description, which is incorporated herein by reference. It is noted that your ob description includes the following as to coordination with other agencies: [Quote] (Job Description, at 2). Prior to accepting your current position with Department B, you were employed by the Department C in a variety of positions from [month and year] to [month and year]. You are contemplating terminating your employment with the Commonwealth of Pennsylvania and accepting a position in the private sector. You state your presumptions that you would be prohibited from representing any future employer before Department B for a period of one year after terminating Commonwealth employment, and that you would not transgress the Ethics Act if you would represent a business before any state government agency other than Department B. However, you request an advisory addressing the implications of your prior employment and current contact with Department C. You state that you are concerned because your present responsibilities require interaction with Department C on a project coordination level. You note that you have been a designer and project coordinator for Department B on several D projects funded by the E's F program. You state that Department B functions as the G. You state that Department B bids and administers the H contracts while E delegates project oversight and review to Department C to ensure that all I requirements have been met. You state that you have interacted with Department C's project managers and other personnel in Confidential Advice 04 -560 June 10, 2004 Page 2 the course of completing the project design. In addition to written and verbal communication, your interaction has included participation at J. Based upon the foregoing facts, you request a confidential advisory that addresses the restrictions of the Ethics Act in light of your prior employment and current contact with Department C. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1'107(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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As an A Engineer for Department B, you 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, 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 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: Confidential Advice 04 -560 June 10, 2004 Page 3 § 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, 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. Confidential Advice 04 -560 June 10, 2004 Page 4 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 would be Department B in its entirety. Therefore, for the first year after termination of service with Department B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Department B. You are advised that Section 1103() of the Ethics Act would not apply to restrict you from having contact with Department C because Department C would not be part of your former governmental body. Your prior employment with Department C ended more than two years ago and would have no relevance as to your future conduct because Section 1103(g) of the Ethics Act only applies for one year following termination of employment with a governmental body. As for your current contact with Department C, it is noted that although your current position includes interaction with Department C on a project coordination level, with Department C having some oversight and review, you have not been "employed" by, or "elected" or "appointed" to Department C so as to make it part of your former governmental body if you would leave Commonwealth employment. See, Confidential Opinion, 01 -006 at 4. 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. Specifically not addressed herein is the applicability of Code K. Conclusion: As an A Engineer with the Department B, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. 1101 et seq. Upon termination of service with Department B, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. For purposes of applying Section 1103(g) of the Ethics Act to future conduct, your former governmental body would be Department B in its entirety, but would not include Department C. 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. Confidential Advice 04 -560 June 10, 2004 Page 5 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