Loading...
HomeMy WebLinkAbout06-550 KinseyNeil R. Kinsey Pennsylvania Governor's Center For Local Government Services Commonwealth Keystone Building 4 Floor Harrisburg, PA 17120 -0225 ADVICE OF COUNSEL May 4, 2006 06 -550 Re: Former Public Employee; Section 1103(g); Local Government Policy Specialist; Department of Community and Economic Development; Governor's Center for Local Government Services. Dear Mr. Kinsey: This responds to your letter of March 30, 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 a Local Government Policy Specialist following termination of service with the Department of Community and Economic Development, Governor's Center for Local Government Services. Facts: You are currently employed as a Local Government Policy Specialist for the Department of Community and Economic Development ( "DCED "), Governor's Center for Local Government Services. You have submitted a copy of your job description, which is incorporated herein by reference. You anticipate retiring in September 2006 and accepting employment as an occasional instructor for the Pennsylvania State Association of Township Supervisors ( "PSATS "), which is under contract with DCED to provide training programs for local government officials. You state that as an employee of DCED, part of your job is to help oversee and plan many of the training programs as well as serve as an instructor in many of the programs. Consequently, you have frequent interaction with PSATS staff. Following your retirement from DCED, you desire to continue as an instructor for the training programs as an employee of PSATS working approximately four to eight days per month. You note that if such activity would be permissible, your co- instructors could include former colleagues from DCED. In addition, you would also like to work Kinsey, 06 -550 May 4, 2006 Page 2 on a similar basis directly for DCED in the peer -to -peer program, delivering technical assistance to local government or other forms of assistance to the department itself. You state that you are aware of restrictions on post- retirement employment by the State Employees Retirement System. It is noted that you have submitted copies of the following additional documents along with your request letter: (1) PSATS contract for non - Commonwealth employee instructors; and (2) page from the DCED web site describing the peer -to -peer technical assistance program. You state that you have enclosed copies of two representative workshop brochures listing you as an instructor, but said brochures were not enclosed with your request letter. You ask whether the proposed arrangement described above would be permissible under the Ethics Act. 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. As a Local Government Policy Specialist for DCED, 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 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, 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 Kinsey, 06 -550 May 4, 2006 Page 3 "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 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. Kinsey, 06 -550 May 4, 2006 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 the DCED in its entirety including, but not limited to, the Governor's Center for Local Government Services. Therefore, for the first year after termination of service with the DCED, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the DCED. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that the Ethics Act would not prohibit you from accepting employment with or becoming an independent contractor for PSATS. However, to the extent your job duties as an instructor for PSATS would require you to interact with DCED in a manner that would constitute prohibited "representation," your performance of such activities would be contrary to Section 1103(g) of the Ethics Act. In this regard, personal contact with DCED staff who would be co- instructors would clearly be prohibited under Section 1103(g) of the Ethics Act. With regard to working directly for DCED in the department's peer -to -peer program, you do not indicate what the nature of your relationship with DCED would be in performing such services. It would seem that you might be considering three types of arrangements: (1) performing such services without compensation; (2) performing such services for compensation under the 95 -day program which allows annuitants to work up to 95 days per fiscal year under certain conditions (see, 71 Pa.C.S. § 5706(a.1); McGlathery, Opinion 00 -004); or (3) performing such services for compensation as an independent contractor. Each of these arrangements shall be considered. First, you are advised that Section 1103(g) of the Ethics Act would not preclude you from performing such services free of charge, because Section 1103(g) only applies to restrict a former public official /public employee when the representation before the former governmental body is with "promised or actual compensation." 65 Pa.C.S. § 1103(g). Second, based upon the assumptions that in performing these duties you would continue to meet the criteria for status as a "public employee" and that you would otherwise qualify for participation in the program, Section 1103(g) of the Ethics Act would not preclude you from performing such services for compensation under the aforesaid 95 -day program which allows annuitants to work up to 95 days per fiscal year. Section 1103(g) does not prohibit the rehiring of the former public employee provided that a true public employment relationship exists. See, McGlathery, supra; Long, Opinion 97 -010; Confidential Opinion, 93 -005. However, each time you would enter the 95 -day program, you would become a "public employee" again, and each time you would terminate your service under that program, you would once again became a former public employee subject to the restrictions of Section 1103(g). McGlathery, Opinion 00 -004. You are cautioned that the restrictions of Section 1103(g) would apply for a full one -year period each time you would become a former public employee. Id. Thus, as a result of participation in the 95 -day program, the one -year period of applicability of Section 1103(g) would begin anew each time you would terminate participation in the 95 -day program. Finally, you are advised that Section 1103(g) of the Ethics Act would preclude you from performing such services for compensation as an independent contractor. To Kinsey, 06 -550 May 4, 2006 Page 5 perform such services as an independent contractor would transgress Section 1103(g) because it would necessarily involve prohibited representation before your former governmental body (for example, through personal appearances before your former governmental body or the submission of written documents containing your name to "assigned reviewers" who would clearly be DEP staff members). See, Confidential Opinion, 97 -008; Confidential Opinion, 97 -007; Confidential Opinion, 93 -005. 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: As a Local Government Policy Specialist for the Department of Community and Economic Development ( "DCED "), Governor's Center for Local Government Services, you 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 DCED, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be DCED in its entirety including, but not limited to, the Governor's Center for Local Government Services. 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 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, Kinsey, 06 -550 May 4, 2006 Page 6 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