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HomeMy WebLinkAbout06-548 StrizziPaul A. Strizzi 200 Mountainview Road Mount Holly Springs, PA 17065 Dear Mr. Strizzi: ADVICE OF COUNSEL April 14, 2006 06 -548 This responds to your letter of March 20, 2006 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1 =S. § 1101 et seq., presents any restrictions upon employment of a Human Resource Analyst 4 tollowing termination of service with the Board of Probation and Parole. Facts: You seek an advisory regarding the post - employment restrictions that ap yp to you under the Ethics Act. You have submitted facts that may be fairly summarized as follows. You plan to retire on July 21, 2006 from your employment as a Human Resource Analyst 4 with the Board of Probation and Parole. You have submitted a copy of your job description which is incorporated herein by reference. You ask what restrictions would be imposed upon you under the Ethics Act regarding working with Commonwealth agencies after your retirement to provide training sessions, workshops, .conferences and speaking engagements. You also inquire about doing business with other agencies within the one year period as well as working in instances where you would receive no compensation. 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 he 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 thaf 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. As a Human Resource Analyst 4 for the Board of Probation and Parole, 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 de scription, 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; Strizzi, 06 -548 April 14, 2006 Page 2 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/publicemployee 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 �pe__rs with promised or actual compensation, on any matter eetore the governmental body with which he has been associated one year atter 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 n y activity which includes, but is not limited to, the personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed - by or contain [he 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 w 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 emplo Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 - UU /. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activit . Examples of prohibited representation include: (1) personal appearances betore 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. Popovicfi, 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 (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 Strizzi, 06 -548 April 14, 2006 Page 3 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 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 articular subdivision of the agency or other g overnmental 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 9U - UUb; bharp, opinion 9U UU9 - The governmental body with which you would be associated upon termination of public service would be the Board of Probation and Parole in its entirety. Therefore, for the first year after termination of service with the Board of Probation and Parole, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Board of Probation and Parole. The questions you have posed will now be addressed. Although you are prohibited from representing a person for promised or actual consideration before your former governmental body within one year of termination of service, that prohibition does nol apply to agencies other than your former governmental body. The one year prohibition as to your former governmental body ends after one year from your termination of service. If you receive no promised or actual consideration for the representation, you may appear before your tormer governmental body in the one year period after termination of service. Thus, the prohibition of Section 113(g) only restricts representation in the one year period before your former governmental body as to those instances where you would receive promised or actual consideration for the representation. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(g) . only. It is expressly 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. Conclusion: As a Human Resource Analyst 4 with the Board of Probation and Parole, you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act f Ethics Act'), 65 Pa. .Sy § 1101 et seq. Upon termination of service wit the Board of Probation and Parole, you would become a former public employee subject to Section 1103(g) of the Ethics Act. The former governmental body would - be the Board of Probation and Parole in its entirety. Strizzi, 06 -548 April 14, 2006 Page 4 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 Mtatement 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 (3U) da of the date of tins 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 (71T -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