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HomeMy WebLinkAbout06-532 DunnJohn B. Dunn Monroe County Solicitor Administrative Center One Quaker Plaza Stroudsburg, PA 18360 -2192 ADVICE OF COUNSEL March 23, 2006 06 -532 Re: Former Public Employee; Section 1103(g); Administrative Officer 2; Pennsylvania Department of State. Dear Mr. Dunn: This responds to your letter of January 27, 2006 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any restrictions upon employment of an Administrative Officer 2 following termination of service with the Pennsylvania Department of State. Facts: As Solicitor for Monroe County ( "County "), you have been authorized by ail Borger ( "Borger ") to seek an advice of counsel as to her prospective conduct. You have submitted facts that may be fairly summarized as follows. Borger is a resident of the County. From 1986 to 2003, Borger was employed by the County as Chief Clerk of the Monroe County Elections Board. You state that immediately thereafter, Borger commenced employment with the Pennsylvania Department of State in the election office as the HAVA administrator. It is administratively noted that the Division of Help America Vote Act ( "HAVA" ) is within the Bureau of Commissions, Elections and Legislation of the Department of State. You have submitted a copy of Borger's former job description with the Department of State, which is incorporated herein by reference. It is noted that Borger's former job description lists her job title and working title as an Administrative Officer 2. On January 3, 2006, the County re -hired Borger to work as a temporary employee in the County Election Board and Voter Registration Office. You have submitted a description of Borger's current job duties, which is incorporated herein by reference. Dunn /Borger, 06 -532 March 23, 2006 Page 2 You state that Borger will necessarily be in contact with the Department of State relative to many matters, not the least of which will be registration of voters and compliance by the County to the federally mandated requirements of HAVA. You do not believe that Borger will be "representing' the county as that term is employed in 1103(g) of the Ethics Act as any actual advocating or representing would be undertaken by legal counsel or individuals specifically employed for that purpose. You state that Borger would not be involved in any "personal appearances, negotiating, lobbying or submitting bid or contract proposals." You note that the individual who was most recently engaged as the Director of Voter Registration /Elections left the County's employment in January 2006. You state that Borger has indicated that she does not have any desire to be permanently employed by the County; however, the County may consider engaging Borger as the interim Director of Voter Registration /Elections until a replacement can be found. You reiterate that you anticipate that in Borger's position with the County, she will have contact with the HAVA Administrator of the Department of State. 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. In the former capacity as an Administrative Officer 2 for the Pennsylvania Department of State, Bureau of Commissions, Elections and Legislation, Borger 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 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. Consequently, upon termination of public service, Borger became 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). Dunn /Borger, 06 -532 March 23, 2006 Page 3 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 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 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 ublic 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 Dunn /Borger, 06 -532 March 23, 2006 Page 4 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 Borger was associated upon termination of public service is the Pennsylvania Department of State in its entirety including, but not limited to, the Bureau of Commissions, Elections and Legislation, Division of Help America Vote Act (HAVA). Therefore, for the first year after termination of service with the Department of State, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Department of State. You have factually represented that as a County employee, Borger would necessarily be in contact with the Department of State relative to many matters, including the HAVA requirements. You are advised that such contact with the Department of State by Borger within the one -year period would be in direct contravention of Section 1103(g) of the Ethics Act and would clearly be prohibited. Section 1103(g) would apply even though Borger's current employment is with government as opposed to the private sector. See, Ledebur, supra. 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. Conclusion: In the former capacity as an Administrative Officer 2 for the Pennsylvania Department of State, Bureau of Commissions, Elections and Legislation, Borger 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 the Department of State, Borger became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Pennsylvania Department of State in its entirety including, but not limited to, the Bureau of Commissions, Elections and Legislation, Division of Help America Vote Act (HAVA). The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Dunn /Borger, 06 -532 March 23, 2006 Page 5 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 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. Sincerely, Vincent J. Dopko Chief Counsel