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HomeMy WebLinkAbout06-571 ZamolyiDana L. Zamolyi 530 Susan Way Harrisburg, PA 17109 ADVICE OF COUNSEL July 7, 2006 06 -571 Dear Ms. Zamolyi: This responds to your letter of June 8, 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., would present any restrictions upon employment of an Information Management Coordinator, classified as an Administrative Officer 1 under Job code 08630, following termination of service with the Bureau of Integrated Enterprise System within the Office of Administration. Facts: You are currently employed by the Commonwealth of Pennsylvania as an Information Management Coordinator for the Bureau of Integrated Enterprise System within the Office of Administration. You have provided a summary of the various positions you have held since commencing Commonwealth employment in 1999, together with copies of the job descriptions and job classification specifications for your most recent positions. Since March 4, 2006, you have worked under the job code for an Administrative Officer 1. You have submitted copies of your current job description for the position of Information Management Coordinator and the job classification specifications for an Administrative Officer 1, which documents are incorporated herein by reference. It is noted that per the job classification specifications, an Administrative Officer 1 has the authority, inter alia, to prepare and implement recommendations on budget and personnel actions. You plan to terminate your employment with the Commonwealth effective June 23, 2006. You have been informed of a current open State contract seeking professional /personal development consultants for the Department of Health for an exposition to be held in the fall of 2006. Zamolyi, 06 -571 July 7, 2006 Page 2 You seek guidance regarding the restrictions of the Ethics Act that would apply to you following termination of Commonwealth employment, including answers to the following specific inquiries: 1. Whether the Ethics Act would restrict you from being registered as a professional /personal development consultant under the aforesaid State contract seeking such consultants for the Department of Health or would restrict you from performing work for other State agencies. 2. Whether the Governor's Code of Conduct would restrict you from registering to be a professional /personal development consultant to the Department of Health under the aforesaid contract. 3. For what period of time would the Ethics Act restrict you from accepting opportunities to serve as a consultant to the Office of Administration. 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 an Information Management Coordinator with the Bureau of Integrated Enterprise System, Office for Information Technology, Office of Administration, 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 and job classification specifications, which when reviewed on an objective basis, indicate 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. In this regard, it is noted that the job classification specifications for the job code you are working under provide that an Administrative Officer 1 has the authority to prepare and implement recommendations on budget and personnel actions. This authority in and of itself is sufficient to bring your position within the definition of a "public employee." See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984) (applying an objective test based upon authority granted by a job description and job classification specifications rather than actual duties). 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. Zamolyi, 06 -571 July 7, 2006 Page 3 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. "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 Zamolyi, 06 -571 July 7, 2006 Page 4 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 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you would be deemed to have been associated upon termination of public service would be the Office of Administration in its entirety including, but not limited to, the Bureau of Integrated Enterprise System. Therefore, for the first year following termination of Commonwealth employment, Section 1103(g) of the Ethics Act would apply to you and would restrict "representation" of "persons" before the Office of Administration. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. In response to your first specific inquiry, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from being registered as a professional /personal development consultant for a State contract with the Department of Health or from performing work for other State agencies provided that in so doing, you would not engage in any activity that would constitute prohibited representation before the Office of Administration. As to your second specific inquiry, the State Ethics Commission does not have the statutory jurisdiction to issue advisories regarding compliance with the Governor's Code of Conduct. As to your third specific inquiry, that has been addressed above. 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. Zamolyi, 06 -571 July 7, 2006 Page 5 Conclusion: As an Information Management Coordinator for the Bureau of Integrated Enterprise System, within the Office for Information Technology, Office of Administration, you would be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq. Upon termination of Commonwealth employment, 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 Administration in its entirety including, but not limited to, the Bureau of Integrated Enterprise System. Section 1103(g) of the Ethics Act would restrict you from engaging in any activity that would constitute prohibited representation before the Office of Administration for one year following termination of Commonwealth employment. The restrictions as to representation outlined above must be followed. You would not be prohibited by Section 1103(g) of the Ethics Act from working as a professional /personal development consultant under a contract with the Department of Health or from performing work for other State agencies provided that in so doing, you would not engage in any activity that would constitute prohibited representation before the Office of Administration. 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, 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