Loading...
HomeMy WebLinkAbout07-537 CERIANIADVICE OF COUNSEL May 23, 2007 William J. Ceriani Descriptive Statistical Manager Center for Workforce Information and Analysis PA Department of Labor and Industry 300 Liberty Avenue, Room 1306 Pittsburgh, PA 15222 Dear Mr. Ceriani: 07 -537 This responds to your letter of April 12, 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 a Descriptive Statistical Manager classified as a Statistical Analyst Supervisor following termination of service with the Center for Workforce Information and Analysis, Pennsylvania Department of Labor and Industry. Facts: You are currently employed by the Pennsylvania Department of Labor and Industry "Department of Labor and Industry "), Center for Workforce Information and Analysis ( "CWIA "). Your current job title is "Descriptive Statistical Manager." You have submitted a copy of your current job description, which is incorporated herein by reference. The job description lists your class title as "Statistical Analyst Supervisor." In a telephone conversation with Commission staff, you have confirmed that you perform the job duties of a Statistical Analyst Supervisor. A copy of the job classification specifications for the position of Statistical Analyst Supervisor (job code 05690) has been obtained and is incorporated herein by reference. You are planning to retire from Commonwealth employment in June 2007. You state that you have made many professional and personal contacts in the course of your Commonwealth employment, some of which might be interested in offering you full -time or part -time employment following your retirement. You state that during your thirty -five years of Commonwealth service, you have performed duties including finding, calculating, and analyzing statistical data; reparing publications; overseeing research projects; responding to requests for information; providing presentations and speeches regarding labor market information in economic development and workforce development planning; and managing various projects. Ceriani, 07 -537 May 23, 2007 Page 2 You have served as manager of an agency field office, and as manager of the Labor Market Information Research Unit in the CWIA. You have also served in an advisory capacity to a number of organizations including four local Workforce Investment Boards, PA Women Work, the Community Education Department at Carlow University, and the Alliance for Career Education. You state that in your advisory capacity, you provided assistance on the use of information resources to help these organizations achieve their functions. You state that you were never involved in setting policy or making decisions on how these organizations would interact with state government. You state that because of your above activities, you are well known among economic and workforce development organizations and are frequently asked to provide technical expertise on the availability of data to address workforce problems and on how best to analyze and use those data resources. You ask whether, following your retirement from the Commonwealth, the Ethics Act would impose any restrictions upon you with regard to seeking employment in any of the following areas in which you have had prior involvement: (1) Workforce Investment Boards: You have worked with four Workforce Investment Boards in the state. The Workforce Investment Boards are public /private consortia that are responsible for the allocation of public job training funds and the designation of which training programs are eligible for certification to train students who receive training funds under the Workforce Investment Act. These Workforce Investment Boards also control CareerLink sites, seek grant funds, and conduct studies regarding workforce issues. (2) Educational institutions: You are considering teaching at a private or state - funded college or university or working as a researcher at a university research institute. You have had working relationships with individuals from various Universities in Pennsylvania. Private or not - for - profit economic development or workforce development organizations: You state that some of these organizations have a variety of dealings with the Commonwealth, but that you have never had any input into any contract negotiations or grant applications between these organizations and the Commonwealth, except that you provided statistical data, which is available to the public, for use in these organizations' negotiations or grant applications. You have never been involved in the writing of any of these organizations' strategic plans or their applications for contracts or grants with state government. (4) Private consulting: You are considering becoming a private consultant to work for any of the above - mentioned organizations to perform data analysis or provide advice on matters such as strategic planning or demographic analysis. 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. (3) Ceriani, 07 -537 May 23, 2007 Page 3 As a Descriptive Statistical Manager classified as a Statistical Analyst Supervisor for the Department of Labor and Industry, 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 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. Cf., Markowski, Advice of Counsel 92 -632. 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 employee from accepting a position of employment, it does restrict the former public employee with regard to "representing" a "person" before the governmental body with which he has been associated 65 Pa.C.S. § 1102. § 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. Ceriani, 07 -537 May 23, 2007 Page 4 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 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 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 ublic employee may assist in the preparation of any documents presented to his former governmental body. However, the former public employee may not be identified on documents submitted to the former governmental body. The former 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 employee with regard to representation before his former governmental body. The former public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the 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 would be the Department of Labor and Industry in its entirety. Therefore, for the first year after termination of service with the Department of Labor and Industry, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Department of Labor and Industry. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are further advised that Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. Ceriani, 07 -537 May 23, 2007 Page 5 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public employee from using the authority of public employment or confidential information received by holding such a public position for the private pecuniary benefit of the public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide as follows: § 1103. Restricted activities (b) Seeking improper influence. —No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence. —No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public Ceriani, 07 -537 May 23, 2007 Page 6 employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. §§ 1103(b), (c). Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value 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. You have specifically inquired as to whether the Ethics Act would prohibit you from seeking employment or private consulting work with Workforce Investment Boards, educational institutions, or economic development or workforce development organizations with which you have had involvement during your employment with the Department of Labor and Industry. Although Section 1103(g) of the Ethics Act itself does not prohibit the acceptance of private employment following termination of public employment, based upon the submitted facts, this Advice is not able to conclusively determine whether your acceptance of an employment position or consulting work with any particular Workforce Investment Board, educational institution, or economic development or workforce development organization following termination of employment with the Department of Labor and Industry would transgress other prohibitions of Section 1103 of the Ethics Act set forth above. For any given Workforce Investment Board, educational institution, or economic development or workforce development organization, the answer to your specific inquiry would depend upon facts that you have not submitted, such as, for example: how long ago you had official involvement as to that Workforce Investment Board, educational institution, or economic development or workforce development organization; whether at the time of your official involvement, the prospect of your future employment or consulting work with such Workforce Investment Board, educational institution, or economic development or workforce development organization would have been reasonably anticipated; and whether any actions that you took during your employment with the Department of Labor and Industry might have furthered the prospects for your future employment or consulting work with the Workforce Investment Board, educational institution, or economic development or workforce development organization. The foregoing examples are merely illustrative and should not be considered a complete listing of the types of factors that could affect such a determination. 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 Descriptive Statistical Manager classified as a Statistical Analyst Supervisor for the Pennsylvania Department of Labor and Industry ( "Department of Labor and Industry "), you would be considered a "public employee" as that term is 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 Labor and Industry, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the Department of Labor and Industry in its entirety. The restrictions as to representation outlined above must be followed. Although Section 1103(g) of the Ethics Act itself does not prohibit the acceptance of private employment following termination of public employment, based upon the submitted facts, this Advice is not able to conclusively determine whether your Ceriani, 07 -537 May 23, 2007 Page 7 acceptance of an employment position or consulting work with any particular Workforce Investment Board, educational institution, or economic development or workforce development organization following termination of employment with the Department of Labor and Industry would transgress other prohibitions of Section 1103 of the Ethics Act set forth above. 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, 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