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HomeMy WebLinkAbout06-608 LawsonRobert D. Lawson 4917 Killington Dr. Harrisburg, PA 17112 Dear Mr. Lawson: ADVICE OF COUNSEL December 14, 2006 06 -608 This responds to your letter of November 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 a Director of Planning and Policy Management following termination of service with the Pennsylvania Liquor Control Board (the "PLCB "). Facts: Effective June 18, 2006, you retired from the PLCB after thirty -five years of service, during which time you held various positions. For the last six and one -half years, you were employed as the Director of Planning and Policy Management. In that position, you reported to the Director of Administration. You have submitted a copy of your job description, which is incorporated herein by reference. A copy of the job classification specifications for your position (job code 02260) has also been obtained and is incorporated herein by reference. As Director of Planning and Policy Management, your numerous duties included, inter alia, acting as the PLCB's agency implementation team manager for the Imagine PA project; chairing the PLCB's SAP Steering Committee, which was established to determine the best means by which to implement the Commonwealth's SAP software within the PLCB for Enterprise Financials and related retail business functions; and participating in meetings with third party ITQ vendors and software vendors who were interested in providing services or products to the PLCB. You express your view that the Ethics Act would restrict you from representing yourself or any other party before the PLCB for at least one year following your retirement. You ask whether the Ethics Act would impose any additional restrictions on your activities during the one -year period following your retirement and beyond. You specifically seek guidance regarding any restrictions that the Ethics Act would impose upon you with respect to the following career options that you desire to pursue: 1. You plan to establish an independent consulting practice by which you would contract with private companies to provide your specialized Lawson, 06 -608 December 14, 2006 Page 2 knowledge and skills with respect to Point of Sale, Supply Chain Management, Warehouse Management, Electronic Commerce, Product Identification Standards, Strategic Planning, Business Process Improvement, and Change Management. You assert that you would not represent yourself or any third party before the PLCB for at least one year following your retirement. 2. In your pursuit of consulting work, you might contract with professional service providers or software providers to provide your experience and knowledge in support of their preparation of proposals for services to implement software packages or improve business operations. Such proposals might be in response to bids or RFPs issued by state agencies, including the PLCB. You assert that you would not represent yourself or any third party before the PLCB for at least one year following your retirement. 3. You might also contract with entities to provide your specialized knowledge and skills with respect to the alcohol beverage industry. Such entities could include wine and spirit wholesalers and suppliers, wine and spirit industry associations, national and international standards organizations, and the National Alcohol Beverage Control Association ( "NABCA "). The NABCA, of which the PLCB is a member, represents the "control states" in interests common to all states that have any degree of direct control over alcohol beverage sales. You state that the NABCA might be interested in using your services for undertakings that would be beneficial to multiple states. 4. You might consider direct employment with any of the above referenced entities that would find your skills and experiences applicable to a full -time relationship. You assert that you would not represent yourself or any third party before the PLCB for at least one year following your retirement. 5. As a long standing member and executive of the Alcohol Beverage Industry EC Council, which is sponsored by GS1, the global standards organization, you might become involved with an undertaking in which the PLCB would benefit from the industry standards process as well as the adoption of standards. You state that you most likely would not be in a position of representing any entity for remuneration but rather would be providing information that might assist the PLCB should it choose to adopt the standards. You assert that if payment would be required from the PLCB, you would not represent yourself or the entity before the PLCB during the one -year period following your retirement. You state that the PLCB has a code of conduct that directly references the Ethics Act and the Governor's Code of Conduct, and that you will request an advisory opinion from the PLCB Chief Counsel with respect to that code of conduct. You conclude your request for an advisory from the State Ethics Commission by noting that you seek a response that will enable you to ensure full compliance with the Ethics Act and the State Adverse Interest Act if applicable. 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 Lawson, 06 -608 December 14, 2006 Page 3 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. In the former capacity as the Director of Planning and Policy Management for the PLCB, 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 became a former public employee subject to the restrictions of 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 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. Lawson, 06 -608 December 14, 2006 Page 4 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. 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 are deemed to have been associated upon termination of public service is the PLCB in its entirety. Therefore, for the first year after termination of service with the PLCB, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the PLCB. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. Lawson, 06 -608 December 14, 2006 Page 5 Your inquiry regarding the extent and duration of the restrictions imposed upon you by the Ethics Act has been addressed above. In considering the five career options that you desire to pursue, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from pursuing such opportunities provided that in so doing, you would not engage in prohibited representation before the PLCB as set forth above. You are cautioned that the Section 1103(g) restrictions would apply as to your representation of person(s), with promised or actual compensation, on any matter before the PLCB, even if such matter would not involve any expenditure by the PLCB. With regard to the question of whether the State Adverse Interest Act would impose any restrictions upon you with respect to your proposed career pursuits, this question may not be addressed because the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) of the Ethics Act 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 are the State Adverse Interest Act, Governor's Code of Conduct, and any code of conduct of the PLCB. Conclusion: In the former capacity as the Director of Planning and Policy Management with the Pennsylvania Liquor Control Board (the "PLCB "), you would be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with the PLCB, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the PLCB in its entirety. Section 1103(g) of the Ethics Act would restrict you from engaging in any activity that would constitute prohibited representation before the PLCB 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, since service has been 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. Lawson, 06 -608 December 14, 2006 Page 6 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, Robin M. Hittie Chief Counsel