HomeMy WebLinkAbout07-518 TRAUBTod G. Traub
107 Juniper Drive
Camp Hill, PA 17011
Dear Mr. Traub:
ADVICE OF COUNSEL
March 15, 2007
07 -518
This responds to your letter of February 8, 2007, 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 Assistant
Director of Correctional Industries — Commissary following termination of service with
the Bureau of Correctional Industries within the Pennsylvania Department of
Corrections.
Facts: At the time of your inquiry, you were employed as an Assistant Director of
Correctional Industries — Commissary with the Bureau of Correctional Industries within
the Pennsylvania Department of Corrections ("Department of Corrections "). Before
assuming that role, you were employed as an Acting Assistant Director of Correctional
Industries with the Bureau of Correctional Industries from March 15, 2005, to December
2006. Prior to March 2005, you were employed with the Commonwealth of
Pennsylvania, Department of Transportation ("PennDOT ") as an Executive Assistant to
the Deputy Secretary for Administration /SAP Project Manager.
You have submitted a copy of the position description for your most recent
position with the Bureau of Correctional Industries, which is incorporated herein by
reference. A copy of the job classification specifications for that position (job code
98780) has also been obtained and is incorporated herein by reference.
You stated that you anticipated leaving Commonwealth employment on February
23, 2007, to take a position performing business and technology consulting services in
the private sector as a Business Systems Consultant with NextStep Technology
Advisors. You further stated that you anticipated beginning work with your new
employer on February 26, 2007.
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you with regard to your dealings with the Commonwealth, and particularly, the
Department of Corrections or PennDOT.
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
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March 15, 2007
Page 2
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.
In the former capacity as an Assistant Director of Correctional Industries —
Commissary with the Bureau of Correctional Industries within the Department of
Corrections, 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. Cf., Swartz, Advice of Counsel, 05 -608. This conclusion is based upon the
position 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 became 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
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
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March 15, 2007
Page 3
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
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 is the Department of Corrections in its
entirety including, but not limited to, the Bureau of Correctional Industries. Therefore,
for the first year after termination of service with the Department of Corrections, Section
1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before
the Department of Corrections.
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March 15, 2007
Page 4
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that the Ethics Act would restrict your conduct in your new position to the extent
that such conduct would constitute prohibited "representation" before the Department of
Corrections. Section 1103(g) would only apply to restrict you from engaging in
prohibited "representation" before the Department of Corrections and would not apply
as to PennDOT or other state agencies. However, where PennDOT or such other state
agencies would have involvement with the Department of Corrections, you would have
to exercise caution to ensure that you would not engage in prohibited representation
before the Department of Corrections.
Based upon the facts that 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.
Conclusion: In the former capacity as an Assistant Director of Correctional
Industries — Commissary with the Bureau of Correctional Industries within the
Pennsylvania Department of Corrections ( "Department of Corrections "), you would be
considered a "public employee" as defined in the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with the
Department of Corrections, you became a "former public employee" subject to Section
1103(g) of the Ethics Act. The former governmental body is the Department of
Corrections in its entirety including, but not limited to, the Bureau of Correctional
Industries. The restrictions as to representation outlined above must be followed.
Section 1103(g) of the Ethics Act would only apply to restrict you from engaging in
prohibited "representation" before the Department of Corrections and would not apply
as to PennDOT or other state agencies. However, where PennDOT or such other state
agencies would have involvement with the Department of Corrections, you would have
to exercise caution to ensure that you would not engage in prohibited representation
before the Department of Corrections. 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.
This letter is a public record and will be made available as such.
Traub, 07 -518
March 15, 2007
Page 5
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