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HomeMy WebLinkAbout06-597 CONFIDENTIAL ADVICEADVICE OF COUNSEL November 17, 2006 06 -597 This responds to your letter of October 15, 2006, by which you requested a confidential 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 A following termination of service with Commonwealth Agency B. Facts: You are a C. You have been employed as an A within Headquarters ffice R, Bureau D of Commonwealth Agency B since [date]. You have submitted a copy of the job description for your position, which is incorporated herein by reference. A copy of the job classification specifications for your position under job code [number] has also been obtained and is incorporated herein by reference. You are contemplating terminating your employment with the Commonwealth to perform independent professional services in the private sector. These services would include the performance of independent P and /or the review of P performed by others. You pose two sets of inquiries, the first of which is based on the following facts. You are considering affiliating with a company ( "the Company ") that holds a pre- existing, open -ended contract with the Commonwealth. You would be affiliated with the Company as an independent subcontractor to the Company and not as an employee of the Company, and your function would be to administer the aforesaid contract between the Company and the Commonwealth. The subject contract is for fee review services of E P reports prepared in conjunction with the acquisition of F for public use. The fee review services would include review of P prepared by Commonwealth Agency B staff and /or independent fee Q as well as the preparation of G for P assignments throughout the entire Commonwealth. You would be responsible for the preparation of fee review reports and G for P assignments as sub - contracted from the Company. You would also be responsible for signing pre - approved Commonwealth Agency B P review forms created for use in the approval of E P reports. You state that while your name might appear on invoices transmitted to Commonwealth Agency B, it would be as a subcontractor to the Confidential Advice, 06 -597 November 17, 2006 Page 2 Company as opposed to an employee of the Company. You would have contact with the individual H Offices of Commonwealth Agency B throughout the state but not with Headquarters Office R, Bureau D where you currently work. Such contact would occur through personal visits, e-mail, telephone, fax, and United States mail. You pose the following specific inquiries: 1. What if any prohibitions or restrictions would the Ethics Act impose upon you with respect to the scenario outlined above? 2. Would you be permitted to attend regular F Project Status Meetings for individual Commonwealth Agency B H Office projects for which you would be providing fee review services? 3. Would the Company be permitted to indicate your name on invoicing or other documents transmitted to the individual H Offices or to Commonwealth Agency B? 4. Would you be permitted to have occasional direct contact with employees of the individual H Offices as might be necessary in the administration of the pre- existing P review contract between the Company and the Commonwealth? 5. Would you be permitted to sign pre- approved Commonwealth Agency B P review forms prepared for the recommendation of damages to be paid by Commonwealth Agency B to property owners, based on your review of P reports submitted to the Commonwealth? Your second set of inquiries is based upon the following facts. In addition to the above, you are considering creating your own fee P firm, which would provide independent fee P services throughout the Commonwealth. These services would be provided for mortgage lending purposes and for utilization in divorce and estate proceedings and the like. You would be interested in also providing fee P services of E for various agencies of the Commonwealth, including Commonwealth Agency B. A prerequisite for providing such services to Commonwealth Agency B and many other Commonwealth agencies is pre - approval through inclusion on Commonwealth Agency B's I List, a list of pre- approved Q maintained and utilized by Commonwealth Agency B. You state that inclusion on the I List is a condition for providing P services for all agencies required to utilize Q listed on the I List, and that many state and local public agencies refer to the I List when soliciting for fee P services. The J Contract is held with the Commonwealth with individual purchase orders against the contract written by the individual H Offices throughout the Commonwealth. In providing fee P services under the J Contract, you would be responsible for bidding on individual P assignments, including the valuation c luation of E in conjunction with F acquisition for public use. You express your view that since your bidding would be done in accordance with the format described in the pre- existing contract, there would be no potential for any influence on a H Office. You state that you would have contact with the individual H Offices throughout the Commonwealth but not with Headquarters Office R, Bureau D where you currently work. Such contact would occur through personal visits, e -mail, telephone, fax, and United States mail. You state that your name would appear on invoicing and bidding documents transmitted to the individual H Offices or to other agencies, and all transactions would be handled in accordance with the processes outlined in the pre- existing contract. In Confidential Advice, 06 -597 November 17, 2006 Page 3 addition, the use of pre - approved Commonwealth Agency B P forms is required by the Commonwealth Agency B K Manual. Therefore, your name would be required to appear on pre- approved Commonwealth Agency B P forms as the preparer of the P report. You also would be interested in providing fee P services and /or P consulting services to private property owners impacted by L by an M entity. This would involve preparing and /or reviewing P reports on behalf of private property owners during the L process by an M entity such as Commonwealth Agency B or other state or local public agencies. You pose the following inquiries: 1. What if any prohibitions or limitations would the Ethics Act impose upon you with respect to the scenario outlined above? 2. Would you be permitted to have occasional direct contact with employees of the individual H Offices as might be necessary in the administration of the pre- existing P contract? 3. Would you be permitted to transmit invoicing or bidding documents to the individual H Offices or to Commonwealth Agency B indicating your name as the provider of the P services? 4. Would you be permitted to sign pre- approved Commonwealth Agency B P forms prepared for use in the valuation of property scheduled for N? 5. Would you be permitted to provide P, P review and /or P consulting services for private property owners during L by an M entity such as Commonwealth Agency B and if so, would you be permitted to have occasional direct contact with employees of the individual H Offices or Commonwealth Agency B as might be necessary during the P, P review and /or P consulting process? 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 A for Commonwealth Agency B, 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 the 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. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. Confidential Advice, 06 -597 November 17, 2006 Page 4 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 "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 /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. Generally, a former "public official" or former "public employee" may not contract with his former governmental body during the first year following Confidential Advice, 06 -597 November 17, 2006 Page 5 termination of public service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -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. 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 /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 No. 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 Commonwealth Agency B in its entirety including, but not limited to, Headquarters Office R, Bureau D. Therefore, for the first year after termination of your service with Commonwealth Agency B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Commonwealth Agency B. Having established the above general principles, your two sets of inquiries shall be addressed under Section 1103(g) of the Ethics Act. With respect to your first set of specific inquiries, you are advised that Section 1103(g) of the Ethics Act would not generally prohibit you from acting as an independent subcontractor to the Company. However, to the extent that your job duties would require you to interact with Commonwealth Agency B in a manner that would constitute prohibited "representation" before Commonwealth Agency B, your performance of such activities would be contrary to Section 1103(g) of the Ethics Act. You are advised that the submitted activities that you expect to engage in as an independent subcontractor to the Company would constitute prohibited representation Confidential Advice, 06 -597 November 17, 2006 Page 6 before Commonwealth Agency B. Such prohibited representation would include, but would not be limited to, contact with Commonwealth Agency B personnel and the inclusion of your name on documents, including pre- approved Commonwealth Agency B P review forms, submitted to or reviewed by Commonwealth Agency B and /or its individual H Offices. The submitted fact that your name would appear on documents as a subcontractor rather than as an employee of the Company would be irrelevant to an analysis of your inquiry under the Ethics Act. You would clearly be engaging in prohibited representation of both yourself and the Company (your client) before Commonwealth Agency B. With regard to invoices in particular, as noted above, Section 1103(g) would generally prohibit the inclusion of a former public official's /public employee's name on invoices submitted to the former governmental body except as provided in Abrams/Webster, supra. It is noted that you work for Headquarters Office R of Commonwealth Agency B rather than one of the H Offices. This scenario is the reverse of the type of scenario that was reviewed in Abrams/Webster, supra. It would seem likely that Headquarters Office R would have involvement as to contracts of the H Offices. Therefore, you are advised that the holding of Abrams/Webster would not appear to be applicable to your situation. With regard to your attendance at regular F Project Status Meetings for individual H Office projects for which you would be providing fee review services, you are advised that generally, a former public employee would be permitted to attend meetings held by his former governmental body if such meetings would be open to the public and the former public employee's role would not go beyond that of a general observer. However, Commonwealth Agency B's F Project Status meetings for individual projects would not appear to fall within these parameters. Therefore, based upon the submitted facts, you are advised that your attendance at such meetings would constitute prohibited representation before Commonwealth Agency B. In response to your second set of specific inquiries, you are advised as follows. Section 1103(g) of the Ethics Act would not preclude you from performing independent fee P services in the private sector provided that in performing such services, you would not engage in rohibited representation before Commonwealth Agency B. However, Section 1103(g) of the Ethics Act would preclude you from performing independent fee P services of for Commonwealth Agency B because the submitted activities you expect to engage in would constitute prohibited representation before your former governmental body. The performance of services as an independent contractor for Commonwealth Agency B would necessarily involve prohibited representation before Commonwealth Agency B. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. Submission of your name to Commonwealth Agency B for inclusion on the I List would also necessarily involve prohibited representation before your former governmental body in the nature of contact with Commonwealth Agency B for the purpose of being pre- approved and added to the I List. However, to the extent you would be able to secure work without seeking or obtaining inclusion on Commonwealth Agency B's I List, you are advised that you would not be prohibited from providing fee P services for other Commonwealth agencies provided that in so doing, you would not engage in any activity that would constitute prohibited representation before Commonwealth Agency B. With respect to providing P, P review and /or P consulting services for private property owners during L by an M entity, you are advised that the Ethics Act would not prohibit you from performing such services provided that in so doing, you would not interact with Commonwealth Agency B in a manner that would constitute prohibited representation before Commonwealth Agency B. Such prohibited representation would Confidential Advice, 06 -597 November 17, 2006 Page 7 include, but would not be limited to, contact with Commonwealth Agency B personnel and the submission of documents containing your name to Commonwealth Agency B. 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 /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /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 O. Conclusion: As an A for Commonwealth Agency B, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. "Ethics Act "). Upon termination of service with Commonwealth Agency B, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be Commonwealth Agency B in its entirety including, but not limited to, Headquarters Office R, Bureau D. Section 1103(g) of the Ethics Act would restrict you from engaging in activity that would constitute prohibited representation before Commonwealth Agency B for one year following termination of Commonwealth employment. 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, Confidential Advice, 06 -597 November 17, 2006 Page 8 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