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HomeMy WebLinkAbout07-001 CONFIDENTIALThis Opinion is issued in response to the appeal of Confidential Advice of Counsel, 06 -597, issued on November 17, 2006. I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Nicholas A. Colafella Reverend Scott Pilarz DATE DECIDED: 1/8/07 DATE MAILED: 1/23/07 07 -001 Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would impose any prohibition or restrictions upon an A following termination of service with Commonwealth Agency B. II. FACTUAL BASIS FOR DETERMINATION: By letter dated December 5, 2006 and received December 6, 2006, you appealed Confidential Advice of Counsel, 06 -597. Since you do not dispute the recitation of the facts in the Advice and since the presented facts were fairly summarized therein, they are quoted as follows: You are a C. You have been employed as an A within Headquarters Office 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 Confidential Oanion, 07 -001 January 23, 2007 Page 2 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 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 Confidential Oanion, 07 -001 January 23, 2007 Page 3 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 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 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. Confidential Oanion, 07 -001 January 23, 2007 Page 4 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 ?" Confidential Advice of Counsel 06 -597 at 1 -3. Confidential Advice of Counsel, 06 -597 determined that in your position as an Afor Commonwealth Agency B, you would be considered a "public employee" subject to the Ethics Act and Regulations of this Commission, 51 Pa. Code § 11.1 et seq., and that 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 Confidential Advice of Counsel further determined that your former governmental body would be Commonwealth Agency B in its entirety including, but not limited to, Headquarters Office R, Bureau D. In responding to the first set of inquiries you posed, it was concluded in the Confidential Advice of Counsel that interaction with Commonwealth Agency B constituting representation would be prohibited; activities such as contact with Commonwealth Agency B personnel or inclusion of your name on documents submitted to Commonwealth Agency B would be prohibited representation; the holding in the Abrams /Webster Opinion pertaining to invoices would not appear to have application to your factual circumstances; attendance at meetings held by your former governmental body would be permitted if the meetings were open to the public and your role would not go beyond that of an observer; and attendance at Commonwealth Agency B F Project status meetings would constitute prohibited representation. As to the second set of questions you submitted, it was determined in the Confidential Advice of Counsel that the performance of independent fee P services would be permitted as long as there was no prohibited representation before Commonwealth Agency B; the performance of such services and other services as an independent contractor for Commonwealth Agency B would be prohibited representation; the submission of your name to Commonwealth Agency B for inclusion on the I List would be Confidential Oanion, 07 -001 January 23, 2007 Page 5 encompassed within the ambit of prohibited representation; the provision of fee P services for other Commonwealth agencies would be permitted, if in so doing, you would not engage in prohibited representation before Commonwealth Agency B; and the performance of P services for private property owners would be permitted, if there would be no interaction with Commonwealth Agency B that would constitute prohibited representation. In your letter appealing Confidential Advice of Counsel, 06 -597, you proffer the following arguments: 1. The phraseology on page 6 of the Advice, 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 doing so, you would not engage in any activity that would constitute prohibited representation before Commonwealth Agency B," appears contradictory to you. You state that Commonwealth Agency B is the largest consumer of [type of services] in Pennsylvania and is the lead agency on pre- approving independent fee Q who wish to provide fee P services to the Commonwealth. The P J Contract requires [type of agencies] to utilize the services of only Q included on Commonwealth Agency B's !List for projects containing federal funding in any phase of their projects. This requirement appears in the S Guide. The J Contract also contains a provision indicating that [quote]. You state that while not a strict requirement, most of the other state agencies, by practice, limit their use of Q to those included on Commonwealth Agency B's I List. 2. You contend that it is not practically possible to "provide fee P services for other Commonwealth agencies" without inclusion on Commonwealth Agency B's I List. You believe that the Advice negates your right to pursue your profession as an independent fee V Q by denying to you the ability to bid on state contracts for P services. 3. You contend that the following statements in the Advice are incorrect: It would seem likely that the 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 in your situation." You argue that Abrams /Webster would apply to your scenario. You contend that Headquarters Office R has no involvement in the contracting or invoicing for fee P services or fee review services at the T level. You aver that because the P 1 List states in Appendix A, [quote], in the case of both fee P services and fee review services provided in conjunction with the existing pre - approved contracts, the individual H Offices issue Contract Purchase Orders against the P J Contract and U Contract without input from Headquarters Office R. You state that the funds available for payment of invoices for these services are allocated as portions of the budgets of the individual T projects and not from Headquarters Office R. By letter dated December 7, 2006, you were notified of the date, time and location of the executive session meeting at which your appeal would be considered. The submitted copy of your job description is incorporated herein by reference. We take administrative notice of the job classification specifications for your position, which are also incorporated herein by reference. Confidential Oanion, 07 -001 January 23, 2007 Page 6 III. 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, this 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. Our review of this matter is de novo (Clarke, Opinion 04 -012; Spear, Opinion 04- 011): "De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818 A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946). We shall begin our analysis by confirming that you are a "public employee" subject to the Ethics Act and the Regulations of this Commission. Although you do not challenge your status under the Ethics Act, we have reviewed your job description and job classification specifications and we agree with Advice of Counsel, 06 -597 that your authority /duties would enable you to take or recommend official action of a nonministerial nature with regard to category (5) of the Ethics Act's definition of "public employee," specifically, any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person." 65 Pa.C.S. § 1102. It necessarily follows that upon termination of service with Commonwealth Agency B, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. We agree with the Confidential Advice of Counsel that your former governmental body would be Commonwealth Agency B in its entirety including, but not limited to, Headquarters Office R in which you serve and all H Offices. To the extent your arguments seek to limit the impact of the Section 1103(g) restrictions to the particular unit in which you work, such arguments have no merit for the following reasons. Since the enactment of Act 9 of 1989, the Ethics Act has defined the term "governmental body with which a public official or public employee is or has been associated" to include the entire body: "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 P.S. § 402, now 65 Pa.C.S. § 1102 (Emphasis added). The legislative debate as to Act 9 of 1989 clearly establishes the specific intent of the General Assembly that the restrictions of Section 3(g), now Section 1103(g), apply as to the entire governmental body: Confidential Oanion, 07 -001 January 23, 2007 Page 7 We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit, and my language simply makes it clear in the definition of "governmental body" that we are including subdivisions and offices within that entity. Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Since Act 9 of 1989 was enacted, based upon the above statutory definition and legislative debate, this Commission has consistently determined that a public official's /public employee's former governmental body includes the entire body, not just the unit served. The above legislative debate has been routinely cited in Advices of Counsel and Commission Opinions, including the Advice issued to you. It appears that you might have misconstrued the holding in Abrams /Webster, Opinion 95 -011. Abrams /Webster did not limit the application of the Section 1103(g) restrictions to anything less than the entire former governmental body. To the contrary, Abrams /Webster determined that the former governmental body in that instance would be PennDOT. Id. at 11 -12. Abrams /Webster further held that if 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 submitted to his former governmental body if required by the regulations of the agency. Abrams /Webster, Id. However, that holding as to routine invoices did not limit the overall application of Section 1103(g) to anything less than the entire former governmental body. It is clear that the Abrams /Webster Opinion did not alter the fact that Section 1103(g) applies as to the entire former governmental body. We reject any arguments to the contrary. We further determine that Confidential Advice of Counsel, 06 -597 accurately apprised you of the nature of the Section 1103(g) restrictions and of certain important Commission precedents pertaining to that Section. Accordingly, we adopt and incorporate herein by reference the Advice's recitation of the Section 1103(g) restrictions. As for your claims that the restrictions of the Advice of Counsel would preclude you from going into business as planned, this Commission does not have the legal authority to carve out exceptions that do not have a statutory basis. McCain, Opinion 02 -009; Yatron. Opinion 02 -008; Rubenstein, Opinion 01 -007; Ziegler, Opinion 98 -001; Long, Opinions 97- 010 and 97- 010 -R; Richardson, Opinion 93 -006. We disagree with your assertion that the language quoted on page 6 of the Advice is contradictory. The plain meaning of the language is that seeking or obtaining inclusion on your former governmental body's I List or engaging in any other prohibited representation would be contrary to Section 1103(g) of the Ethics Act. As to your other arguments, they have no relevance or materiality as to the application of Section 1103(g) of the Ethics Act. We agree with the conclusions in the Confidential Advice. Your former governmental body is all of Commonwealth Agency B. Based upon the facts before us, it appears that our decision in Abrams /Webster pertaining to invoices might not apply to you in your proposed activities under the first scenario. However, the submitted facts are insufficient to enable a conclusive determination in that regard, and neither this Opinion Confidential Oanion, 07 -001 January 23, 2007 Page 8 nor the Advice of Counsel has reached such a conclusive determination. As for the second scenario, we conclude that Abrams /Webster would not apply to you because under the second scenario, your contracts would not be pre- existing contracts. Additionally, we note that the quoted portion of the Appendix of the P I List does not alleviate concerns as to whether invoices or other related documents might be forwarded to Commonwealth Agency B's Headquarters R. We determine that actions of applying to Commonwealth Agency B for list inclusion or other enumerated activities that would include personal appearances, interaction with Commonwealth Agency B personnel or submission of documents with your name on them to Commonwealth Agency B would all be within the ambit of prohibited representation. Essentially, the intendment of Section 1103(g) of the Ethics Act is to preclude for the first year following termination of public service the obtainment of financial gain based upon prior associations and connections with the former governmental body, by restricting representation before the former governmental body. In any of your proposed activities other than the purely private work, you would be engaging in prohibited representation before Commonwealth Agency B in one form or another. The question of whether your name could appear on invoices as per our decision in Abrams /Webster is just one small facet of your inquiry, and the answer to that question would not alter the above determination that many of your other proposed activities would constitute prohibited representation before your former governmental body. Based upon the above analysis, we deny the appeal and affirm Confidential Advice of Counsel 06 -597. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: An A employed by Commonwealth Agency B in its Headquarters Office R would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act ") and Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of service with Commonwealth Agency B, the A 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 and all H Offices. The Confidential Advice of Counsel correctly applied the restrictions of Section 1103(g) of the Ethics Act. Confidential Advice of Counsel 06 -597 is affirmed. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). Confidential Oanion, 07 -001 January 23, 2007 Page 9 By the Commission, Louis W. Fryman Chair