HomeMy WebLinkAbout04-562 GrahamAnthony Graham
P.O. Box 8005
Harrisburg, PA 17105
ADVICE OF COUNSEL
June 14, 2004
04 -562
Re: Former Public Employee; Section 1103); Accountant; Auditor; Office of the
Budget; Public Protection and Recreation Division.
Dear Mr. Graham:
This responds to your letter received on May 11, 2004, 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 accountant
following termination of service with the Office of the Budget.
Facts: You are currently employed as an Accountant for the Office of the Budget,
stroller's Office, Public Protection and Recreation Division. Prior to becoming an
Accountant, you were employed as an Auditor in that same division and office. You
have submitted a copy of the job description for your former position as an Auditor,
which is incorporated herein by reference.
You state that as an Auditor, you worked with the Redevelopment Assistance
Capital Program ( "RACP "). You left the Audit Department of the Public Protection and
Recreation Division to work in the Accounting Department on October 27, 2003. Your
current accounting position became effective on December 27, 2003.
You have had some inquiries from grantees and sub - grantees of different RACP
projects asking whether you would be available for employment. You state that you
generally understand the "one year revolving door" provision of the Ethics Act, but need
clarification given your particular circumstances.
You ask, "Would I be able to take a position with a grantee or subgrantee of the
RACP project after one year removed form [sic] employment with the audit department
even though I still work for the office of the budget in a non -RACP related capacity? I
would terminate my employment with the commonwealth to take a position with a
grantee or subgrantee, so I don't know if the year wait begins with my leaving the audit
department or with leaving the Office of the budget [sic] through the termination of
employment."
Graham 04 -562
June 14, 2004
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 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.
Although you were requested to supply a copy of the job description for your
current position as an Accountant for the Office of the Budget, such copy has not been
supplied. Therefore, it shall be factually assumed for purposes of this Advisory that as
an Accountant for the Office of the Budget, your job duties and responsibilities are such
that you would be considered to be 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.
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:
§ 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.
Graham 04 -562
June 14, 2004
Page 3
"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 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 recuired 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 90T006; Sharp, Opinion 90- 009 -R.
Graham 04 -562
June 14, 2004
Page 4
The governmental body with which you would be associated upon termination of
public service would be the Office of the Budget in its entirety including, but not limited
to, the Comptroller's Office, Public Protection and Recreation Division. Thus, even
though you worked in two separate departments, the Audit Department and the
Accounting Department (within the Public Protection and Recreation Division), those
departments are part of the same governmental body, the Office of the Budget.
Therefore, for the first year after termination of service with the Office of the Budget,
Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons"
before the Office of the Budget. The one -year period would run from your termination
date forward, rather than from October 27, 2003, when you left the Audit Department.
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
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 the Governor's Code of Conduct.
Conclusion: For purposes of this Advisory, it shall be factually assumed that as an
Accountant for the Office of the Budget, Comptroller's Office, Public Protection and
Recreation Division, you are 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 the Office of the Budget, you would become a "former public employee"
subject to Section 1103(g) of the Ethics Act. The former governmental body would be
the Office of the Budget in its entirety including, but not limited to, the Comptroller's
Office, Public Protection and Recreation Division.
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.
Graham 04 -562
June 14, 2004
Page 5
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