HomeMy WebLinkAbout09-569 WonderlingRobert C. Wonderling
c/o Senate of Pennsylvania
281 Main Capitol Building
The State Capitol
Harrisburg, PA 17120 -3024
ADVICE OF COUNSEL
August 19, 2009
09 -569
Dear Mr. Wonderling:
This responds to your letter dated July 20, 2009, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon employment
of a Senator following termination of service with the Pennsylvania Senate.
Facts: You request an advisory from the Pennsylvania State Ethics Commission
regarding the post - employment restrictions of the Ethics Act. You have submitted facts
that may be fairly summarized as follows.
At the time that you submitted your inquiry, you were serving as Senator for the
24 Senatorial District of the Commonwealth of Pennsylvania. You stated that as part
of your service with the Pennsylvania Senate, you were a Member of the Pennsylvania
Public Television Network ( "PPTN ") Commission and a Member of the Board of
Trustees of the Pennsylvania Public School Employees' Retirement System ( "PSERS ").
In your advisory request, you stated that you intended to resign from the
Pennsylvania Senate effective July 29, 2009. You stated that you would also be
resigning from the PPTN Commission and the PSERS Board of Trustees. You further
stated that you would begin employment as the President and Chief Executive Officer of
the Greater Philadelphia Chamber of Commerce ("Chamber of Commerce ") effective
August 1, 2009. You have submitted a copy of the job description for the aforesaid
position with the Chamber of Commerce, which document is incorporated herein by
reference.
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you with regard to your employment as the President and Chief Executive Officer
of the Chamber of Commerce.
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
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August 19, 2009
Page 2
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.
As Senator for the 24 Senatorial District of the Commonwealth of Pennsylvania,
you would be considered a public official subject to the Ethics Act and the Regulations
of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1.
Consequently, upon termination of public service, you would become a "former
public official" 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.
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August 19, 2009
Page 3
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 if the invoices pertain to a contract that existed prior to
termination of service with such governmental body. 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 bodies with which you would be deerged to have been
associated upon termination of public service as Senator for the 24 Senatorial District
of the Commonwealth of Pennsylvania, hereinafter collectively referred to as your
"former governmental body," would be the Pennsylvania Senate in its entirety and all
commissions, committees, boards, councils and the like on which you served in your
official capacity, including but not limited to the PPTN Commission and the PSERS
Board of Trustees. Therefore, for the first year following termination of your service with
the Pennsylvania Senate, Section 1103(g) of the Ethics Act would apply to restrict you
from engaging in conduct that would constitute the representation of a "person," with
promised or actual compensation, before your "former governmental body" as
delineated above.
You are advised that for the first year following termination of your service with
the Pennsylvania Senate, Section 1103(g) of the Ethics Act would prohibit you from
performing any activity(ies) for the Chamber of Commerce that would involve prohibited
representation before your former governmental body as delineated above.
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August 19, 2009
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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 or give 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.
Conclusion: As Senator for the 24 Senatorial District of the Commonwealth of
Pennsylvania, you would be considered a public official subject to the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of
the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of service
with the Pennsylvania Senate, you would become a "former public official" subject to
Section 1103(g) of the Ethics Act. The governmental bodies with which you would be
deemed to have been associated upon termination of public service as Senator for the
24 Senatorial District of the Commonwealth of Pennsylvania, hereinafter collectively
referred to as your "former governmental body," would be the Pennsylvania Senate in
its entirety and all commissions, committees, boards, councils and the like on which you
served in your official capacity, including but not limited to the Pennsylvania Public
Television Network Commission and the Board of Trustees of the Pennsylvania Public
School Employees' Retirement System. For the first year following termination of your
service with the Pennsylvania Senate, Section 1103(g) of the Ethics Act would apply to
restrict you from engaging in conduct that would constitute the representation of a
"person," with promised or actual compensation, before your "former governmental
body" as delineated above. In particular, Section 1103(g) of the Ethics Act would
prohibit you from performing any activity(ies) for your new employer, the Greater
Philadelphia Chamber of Commerce, which would involve prohibited representation
before your former governmental body as delineated above. The restrictions as to
representation outlined above must be followed. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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
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August 19, 2009
Page 5
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