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HomeMy WebLinkAbout07-1004 WAGNEROPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella DATE DECIDED: 6/12/07 DATE MAILED: 6/29/07 Jason W. Wagner Director of Policy and Government Affairs Associated Pennsylvania Constructors 800 N. Third Street Harrisburg, PA 17102 -2099 07- 013/07 -1004 Dear Mr. Wagner: This Opinion is issued in response to your advisory request dated March 26, 2007. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any restrictions upon employment of a Research Analyst following termination of service with the Pennsylvania House of Representatives, Republican Caucus; and to what extent the former Research Analyst would be subject to the reporting requirements of Pennsylvania's lobbying disclosure law "Lobbying Disclosure Law'), 65 Pa.C.S. § 1301 -A et seq., in his current position as Director of Policy and Government Relations with a private employer. II. FACTUAL BASIS FOR DETERMINATION: You are a former Research Analyst for the Pennsylvania House of Representatives (hereinafter "House of Representatives" or "House"), Republican Caucus. You state that during the seven years you held the aforesaid position, you were assigned to the House Transportation Committee, where your duties included staffing and assisting in the administration of committee functions, meetings and hearings; drafting and analyzing legislation and amendments; preparing reports, presentations, and letters for Republican Members of the House; advising Republican Members of the House on matters of legislative policy; and working with outside organizations on legislative issues. Wagner, 07- 013/07 -1004 June 29, 2007 Page 2 Since December 20, 2006, you have been employed as the Director of Policy and Government Relations for the Associated Pennsylvania Constructors ( "APC "). You state that this position will require you to be an advocate on behalf of APC's members with state and federal agencies, including the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Your job duties will include assisting in the development of industry policies and the promotion of various industry advocacy programs; managing several association technical committees; drafting, monitoring, overseeing, and tracking various pieces of legislation; and assisting in the development of advocacy efforts with the General Assembly. You ask whether the Ethics Act would impose any restrictions upon you with regard to your new position. You state that you are aware that you are subject to a one - year prohibition with respect to lobbying the House of Representatives. You seek guidance as to the requirements for filing Statements of Financial Interests. You acknowledge that you must file a Statement of Financial Interests in 2007 since you terminated your employment with the House at the end of 2006. You ask whether you would also be required to file a Statement of Financial Interests in 2008. You additionally seek guidance as to whether Pennsylvania's Lobbying Disclosure Law would affect your ability to carry out the functions of your new position for the remainder of 2007 or would require you to refrain from any activities until December 20, 2007. You further seek guidance as to what reporting requirements you would be subject to under the Lobbying Disclosure Law. It is administratively noted that during a telephone conversation with Assistant Counsel of the Legal Division of the State Ethics Commission, you indicated that you were unable to obtain a copy of a job description for your former position with the House of Representatives. By letter dated May 10, 2007, you were notified of the date, time and location of the public meeting at which your request would be considered. 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), in conjunction with Section 1308 -A(a) of the Lobbying Disclosure Law, 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. We shall first address your inquiries relative to the Ethics Act. In the former capacity as a Research Analyst for the House of Representatives, Republican Caucus, 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. Because you have not submitted a job description for your position as a Research Analyst, this conclusion is based strictly upon the submitted facts, 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., McCormac, Advice of Wagner, 07- 013/07 -1004 June 29, 2007 Page 3 Counsel, 01 -537; Good, Advice of Counsel, 02 -585; Gould, Advice of Counsel, 02 -597, (concluding that a Research Analyst for the House of Representatives is a public employee subject to the Ethics Act). 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 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 Wagner, 07- 013/07 -1004 June 29, 2007 Page 4 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 House of Representatives in its entirety including, but not limited to, the House Republican Caucus. Therefore, for the first year after termination of service with the House of Representatives, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the House of Representatives. Section 1104(a) of the Ethics Act, pertaining to the filing of Statements of Financial Interests, provides as follows: § 1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is Wagner, 07- 013/07 -1004 June 29, 2007 Page 5 appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). Pursuant to Section 1104(a) of the Ethics Act, each public employee of the Commonwealth is required to file a Statement of Financial Interests for the preceding calendar year with the department, agency, body or bureau in which he is employed by May 1 of each year that he holds such a position and of the year after he leaves such a position. Having established the above general principles, we shall address your specific inquiries relative to the Ethics Act. With respect to your first inquiry, you are advised that Section 1103(g) of the Ethics Act would restrict your conduct in your new position to the extent that such conduct would constitute prohibited "representation" before the House of Representatives. As to your second inquiry, you are advised as follows. Based upon the submitted fact that you left your position as a Research Analyst with the House at the end of 2006, you would not be required by Section 1104(a) of the Ethics Act to file a Statement of Financial Interests in 2008 for calendar year 2007. Based upon the facts that have been submitted, the above p ortion of the Opinion has addressed the applicability of Sections 1103(g) and 1104(a) of the Ethics Act only. Turning to your inquiries under the Lobbying Disclosure Law, the following terms are relevant to your inquiries and are defined in the Lobbying Disclosure Law as follows: § 1303 -A. Definitions. "Administrative action." Any of the following: (1) An agency's: (i) proposal, consideration, promulgation or rescission of a regulation; (ii) development or modification of a statement of policy; (iii) approval or rejection of a regulation; or (iv) procurement of supplies, services and construction under 62 Pa.C.S. (relating to procurement). Wagner, 07- 013/07 -1004 June 29, 2007 Page 6 (2) The review, revision, approval or disapproval of a regulation under the act of June 25, 1982 (P.L. 633, No. 181), known as the Regulatory Review Act. (3) The Governor's approval or veto of legislation. (4) The nomination or appointment of an individual as an officer or employee of the Commonwealth. (5) The proposal, consideration, promulgation or rescission of an executive order. "Legislative action." An action taken by a State official or employee involving the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of: (1) legislation; (2) legislative motions; (3) a veto by the Governor; or (4) confirmation of appointments by the Governor or appointments to public boards or commissions by a member of the General Assembly. "Lobbying." An effort to influence legislative action or administrative action in this Commonwealth. The term includes: (1) direct or indirect communication; (2) office expenses; and (3) providing any gift, hospitality, transportation or lodging to a State official or employee for the purpose of advancing the interest of the lobbyist or principal. 'Lobbyist." Any individual, association, corporation, partnership, business trust or other entity that engages in lobbying on behalf of a principal for economic consideration. The term includes an attorney at law while engaged in lobbying. "Principal." An individual, association, corporation, partnership, business trust or other entity: (1) on whose behalf a lobbying firm or lobbyist engages in lobbying; or (2) that engages in lobbying on the principal's own behalf. Wagner, 07- 013/07 -1004 June 29, 2007 Page 7 65 Pa.C.S. § 1303 -A. Factually, you have stated that in your new employment position as the Director of Policy and Government Relations for APC, you will be required to be an advocate on behalf of APC's members with state and federal agencies, including PennDOT. You have stated that your job duties will include assisting in the development of industry policies and the promotion of various industry advocacy programs; managing several association technical committees; drafting, monitoring, overseeing, and tracking various pieces of legislation; and assisting in the development of advocacy efforts with the General Assembly. It is obvious from the submitted facts that your new employment position includes lobbying- related activities. However, despite your job title, it is unclear from the submitted facts whether you personally will be engaging in activities that will bring you within the definition of the term "lobbyist," either as to efforts to influence administrative action or legislative action in Pennsylvania. Therefore, this Commission's responses to your inquiries must necessarily be limited to providing the general guidance below. You ask whether the Lobbying Disclosure Law would affect your ability to carry out the functions of your new employment position for the remainder of 2007 or would require you to refrain from any activities until December 20, 2007. You are advised as follows. To the extent that your activities as the Director of Policy and Government Relations for APC would include "lobbying" as that term is defined by the Lobbying Disclosure Law, you would be considered a "lobbyist." Section 1307 -A of the Lobbying Disclosure Law sets forth certain prohibited activities in which a lobbyist may not engage. 65 Pa.C.S. § 1307 -A. As a lobbyist, you would be required to comply with Section 1307 -A of the Lobbying Disclosure Law for as long as you would remain a lobbyist. There is no one -year limitation on the applicability of Section 1307 -A of the Lobbying Disclosure Law. You further ask what reporting requirements you would be subject to under the Lobbying Disclosure Law. You are advised as follows. To the extent that your activities as the Director of Policy and Government Relations for APC would include "lobbying" as that term is defined by the Lobbying Disclosure Law, you would be considered a "lobbyist," and you would be subject to the registration and reporting requirements of Sections 1304 -A and 1305 -A of the Lobbying Disclosure Law relative to lobbyists (65 Pa.C.S. §§ 1304 -A, 1305 -A) unless you would qualify for exemption under Section 1306 -A of the Lobbying Disclosure Law, 65 Pa.C.S. § 1306 -A. See, Suroviec, Opinion 07 -1003. The Lobbying Disclosure Law provides the following exemptions from the registration and reporting requirements at Sections 1304 -A and 1305 -A: § 1306 -A. Exemption from registration and reporting. The following persons and activities shall be exempt from registration under section 1304 -A (relating to registration) and reporting under section 1305 -A (relating to reporting): (1) An individual who limits lobbying to preparing testimony and testifying before a committee of the General Assembly or participating in an administrative proceeding of an agency. (2) An individual who is an employee of an entity engaged in the business of publishing or broadcasting while engaged in the gathering and dissemination of news and Wagner, 07- 013/07 -1004 June 29, 2007 Page 8 65 Pa.C.S. § 1306 -A. comment on the news to the general public in the ordinary course of business. (3) An individual who does not receive economic consideration for lobbying. (4) An individual whose economic consideration for lobbying, from all principals represented, does not exceed $2,500 in the aggregate during any reporting period. (5) An individual who engages in lobbying on behalf of the individual's employer if the lobbying represents less than 20 hours during any reporting period. (6) Except as required under Section 1305 -A(d), a principal whose total expenses for lobbying purposes do not exceed $2,500 during any reporting period. (7) An elected State official who acts in an official capacity. (8) An appointed State official acting in an official capacity. (9) An elected or appointed official of a political subdivision who is acting in an official capacity for the political subdivision. (10) An employee of the Commonwealth or an agency of the Commonwealth who is acting in an official capacity for the Commonwealth or agency. (11) An individual representing a bona fide church or bona fide religious body of which the individual is a member where the lobbying is solely for the purpose of protecting the constitutional right to the free exercise of religion. (12) An individual who is not a registered lobbyist and who serves on an advisory board, working group or task force at the request of an agency or the General Assembly. (13) Participating as a party or as an attorney at law or representative of a party, case or controversy in any administrative adjudication pursuant to 2 Pa.C.S. (relating to administrative law and procedure). (14) Expenditures and other transactions subject to reporting under Article XVI of the act of June 3, 1937 (P.L. 1333, No. 320), known as the Pennsylvania Election Code. (15) Vendor activities under 62 Pa.C.S. §§ 514 (relating to small procurements), 516 (relating to emergency procurements) and efforts directly related to responding to publicly advertised invitations to bid and requests for proposals. Wagner, 07- 013/07 -1004 June 29, 2007 Page 9 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act and the Lobbying Disclosure Law; the applicability of any other statute, code, ordinance, regulation, or other code of conduct other than the Ethics Act and the Lobbying Disclosure Law has not been considered. IV. CONCLUSION: A Research Analyst with the Pennsylvania House of Representatives (hereinafter "House" or "House of Representatives "), Republican Caucus, 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 House of Representatives, such individual would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the House of Representatives in its entirety including, but not limited to, the House Republican Caucus. The restrictions of Section 1103(g) of the Ethics Act outlined above would have to be followed by the former Research Analyst during the first year following termination of service with the House. Under the submitted fact that service in the position of Research Analyst for the House concluded at the end of 2006, the former Research Analyst would not be required by Section 1104(a) of the Ethics Act to file a Statement of Financial Interests in 2008 for calendar year 2007. To the extent that the former Research Analyst's activities in his new employment position would include "lobbying" as that term is defined by the Lobbying Disclosure Law, such individual would be considered a "lobbyist." As a lobbyist, the individual would be required to comply with Section 1307 -A of the Lobbying Disclosure Law for as long as he would remain a lobbyist. As a lobbyist, the individual would also be subject to the registration and reporting requirements of Sections 1304 -A and 1305 -A of the Lobbying Disclosure Law relative to lobbyists unless the individual would qualify for exemption under Section 1306 -A of the Lobbying Disclosure Law, 65 Pa.C.S. § 1306 -A. The propriety of the proposed conduct has only been addressed under the Ethics Act and the Lobbying Disclosure Law. 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. Pursuant to Section 1308 -A(a) of the Lobbying Disclosure Law, a requester who truthfully discloses all material facts in a request for an advisory and who acts in good faith based upon a written Opinion of this Commission issued to the requester shall not be held liable for a violation of the Lobbying Disclosure Law. The protection afforded for reliance upon this Opinion will remain in effect until such time as any regulation, statutory enactment, or ruling precludes further reliance upon this Opinion. 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). By the Commission, Louis W. Fryman Chair