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HomeMy WebLinkAbout07-559 ConfidentialADVICE OF COUNSEL July 26, 2007 07 -559 This responds to your letter of June 5, 2007, and your faxed transmissions received June 14, 2007, June 18, 2007, and July 24, 2007, by which you requested confidential 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 the A of Office B following termination of service with Governmental Body C. Facts: As D of E, you have been authorized by Individual F, a former employee of overnmental Body C, to seek a confidential advisory on her behalf. You have submitted facts that may be fairly summarized as follows. The G grant is a Governmental Body H grant that is contracted with Governmental Body C. E is under contract with Governmental Body C and serves as the I for the G grant. In support of your advisory request, you have submitted a copy of a grant agreement amendment entitled, [title]. Your inquiry is whether, pursuant to the Ethics Act, Individual F would be permitted to serve as the K of J, a [region] Pennsylvania G initiative. Governmental Body C is not only the contractor for the G grant, but it is also a member of the governing body of J, a member of J's Executive Committee, and a vital partner in the J initiative. You have submitted a copy of the Bylaws of J, which document is incorporated herein by reference. It is noted that said Bylaws provide that the Executive Committee of J includes representatives from various organizations and governmental entities, including Governmental Body C. You state that E would be the employer of the K of J. The J K would be responsible for the day -to -day administration, operations and implementation of the G grant. You have submitted a copy of the job description for the position of K of J, which document is incorporated herein by reference. You state that per said job description, the J K would have the following responsibilities: • Convening, administering, managing, and coordinating J's stakeholders and partnering organizations, which include Governmental Body C; Confidential Advice, 07 -559 July 26, 2007 Page 2 • Convening, administering, managing, and coordinating meetings of J's Executive Committee, which as noted above, includes Governmental Body C; • Managing contracts and contract performance with Governmental Body C; • Monitoring and managing fiscal and budgetary issues that are coordinated through Governmental Body C; • Maintaining ongoing relationships with companies, agencies, governmental entities, and other related organizations, including Governmental Body C as well as Pennsylvania's L Boards and [type of partnerships] that are funded by Governmental Body C. It is noted that per the aforesaid job description, the J K has additional responsibilities including the following: • Direct supervision and management of all of J's program activities and [type of initiatives] funded by the G grant and other funding sources; • Convening, administering, and managing grant committees; • Managing contracts and contract performance; • Providing interim and final progress reports for management, board, and funding agencies consistent with all program goals and objectives; • Maintaining contacts with external agencies related to [type of development projects]; • Assisting in seeking out and writing of future grants; • Maintaining ongoing relationships with companies, agencies, government entities, and other related organizations; and • Creating all internal and external correspondence. Job description, at 1 -2. The job description further provides that "[t]he [K ] will report directly to the Chairperson of the Executive Committee of [J], and if unavai able to the Vice - Chairpersons of the Executive Committee." Job description, at 1. You state that Individual F is a candidate for the position of K of J. Individual F was previously employed as the A of Office B with Governmental Body C. She resigned from this position on [date]. A copy of Individual F's position description for her former position with Governmental Body C has been submitted and is incorporated herein by reference. The position description lists Individual F's job title as [title] and her working title as [title]. You have submitted a copy of the job classification specifications for Individual F's former position with Governmental Body C (job code [number]), which document is also incorporated herein by reference. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon Individual F in the event that she would be offered and would accept the position of K of J. Confidential Advice, 07 -559 July 26, 2007 Page 3 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. In the former capacity as A of Office B for Governmental Body C, Individual F 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 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, Individual F 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 Confidential Advice, 07 -559 July 26, 2007 Page 4 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 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 Individual F is deemed to have been associated upon termination of public service is Governmental Body C in its entirety including, but not limited to, Office B. Therefore, for the first year after termination of service with Governmental Body C, Section 1103(g) of the Ethics Act would apply to restrict "representation" of "persons" before Governmental Body C. Confidential Advice, 07 -559 July 26, 2007 Page 5 Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiry shall be addressed. Although Section 1103(g) of the Ethics Act would not prohibit Individual F from accepting a position of employment, under the submitted facts, it would be difficult as a practical matter for Individual F to perform the duties of the K of J without running afoul of Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act would preclude Individual F from performing any job duties that would involve prohibited representation before Governmental Body C. 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 is the applicability of the M. Conclusion: In the former capacity as the A of Office B within Governmental Body C, Individual F 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 Governmental Body C, Individual F became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be Governmental Body C in its entirety including, but not limited to, Office B. For the first year after termination of Individual F's employment with the Commonwealth of Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the former governmental body, Governmental Body C. The restrictions as to representation outlined above must be followed. Under the submitted facts, it would be difficult as a practical matter for Individual F to perform the duties of the position of K of J without running afoul of Section 1103(g) of the Ethics Act. Act. The propriety of the proposed conduct has only been addressed under the Ethics Further, since service has been terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by Individual F 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 Confidential Advice, 07 -559 July 26, 2007 Page 6 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