HomeMy WebLinkAbout06-602 TRUSKYWilliam Trusky
842 Buttonwood Street
Palmyra, PA 17078
Dear Mr. Trusky:
ADVICE OF COUNSEL
December 1, 2006
06 -602
This responds to your letter of November 2, 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 prohibition or restrictions upon employment
of a Manager of the Accelerated Grievance /Standard Grievance Procedure Program
following termination of service with the Bureau of Labor Relations within the Office of
Administration.
Facts: You are currently employed as a Manager of the Accelerated /Standard
Grievance Procedures Program in the Bureau of Labor Relations within the Office of
Administration. 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 has also been obtained and is incorporated herein by reference.
You intend to retire from Commonwealth employment on March 30, 2007, and
you have been presented with an opportunity for employment following your retirement.
By mutual agreement of the Commonwealth and the Pennsylvania State Correction
Officers Association, you would be named as one of two neutral arbitrators who would
conduct hearings with respect to disputes arising under the Heart and Lung Act (Act
632 /Act 534). The disputes would include appeals arising from denials of benefits and
requests to terminate benefits. This process would allow for appeals only from
employees in the Department of Corrections and the Department of Public Welfare who
are covered by a collective bargaining agreement between the Pennsylvania State
Correction Officers Association and the Commonwealth. The arbitrators would sit on a
rotating basis and be available to hold at least two full hearing days per month, and
payment for the arbitrators' services would be split equally between the Pennsylvania
State Correction Officers Association and either the Department of Corrections or the
Department of Public Welfare. You ask whether the Ethics Act would prohibit you from
engaging in the proposed activity.
Trusky, 06 -602
December 1, 2006
Page 2
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 Manager of the Accelerated /Standard Grievance Procedures Program in the
Bureau of Labor Relations within the 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 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.
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
Trusky, 06 -602
December 1, 2006
Page 3
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.
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 associated upon termination of
public service would be the Office of Administration in its entirety including, but not
limited to, the Bureau of Labor Relations. Therefore, for the first year after termination
of your service with the Office of Administration, Section 1103(g) of the Ethics Act would
apply and restrict "representation" of "persons" before the Office of Administration.
Trusky, 06 -602
December 1, 2006
Page 4
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific
inquiry shall be addressed.
The submitted facts provide that the proposed activity of neutral arbitrator would
occur before the Department of Corrections and the Department of Public Welfare.
These state agencies are considered separate governmental bodies from the Office of
Administration. As such, the p roposed activity would not involve representation before
your former governmental body. Therefore, you are advised that Section 1103(g) of the
Ethics Act would not prohibit you from acting as a neutral arbitrator between the
Department of Corrections or the Department of Public Welfare and the Pennsylvania
State Correction Officers Association.
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.
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.
Conclusion: As a Manager of the Accelerated /Standard Grievance Procedures
Program in the Bureau of Labor Relations within the Office of Administration, you would
be considered a "public employee" subject to the provisions of 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 the Office of
Administration in its entirety including, but not limited to, the Bureau of Labor Relations.
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. Section 1103(g) of the Ethics Act
would not prohibit you from acting as a neutral arbitrator between the Pennsylvania
State Corrections Officer Association and the Department of Corrections or the
Department of Public Welfare because the proposed activity would not involve
representation before your former governmental body. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
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.
Trusky, 06 -602
December 1, 2006
Page 5
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