HomeMy WebLinkAbout10-549 Confidential
ADVICE OF COUNSEL
February 24, 2010
10-549
This responds to your letter dated December 29, 2009, by which you requested
an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether Section 1103(g) of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1103(g), would restrict the future activities of an individual
who, prior to terminating Commonwealth employment in [month and year], served as A
for the B of the C.
Facts:
You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You state that you were employed as A for the B of the C from [date] through
[date], at which time you left the aforesaid position. You state that you have since
worked in the private sector.
You seek guidance as to whether Section 1103(g) of the Ethics Act would
currently impose any restrictions or prohibitions upon you with regard to engaging in
activity(ies) that would involve representation of persons before the C.
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.
It is further initially noted that this advisory is limited to addressing the narrow
question that you have posed.
Preliminarily, it is noted that the submitted facts do not include an official position
description for your position as A for the B of the C. This advice assumes, without
deciding, that in your former capacity as A for the B of the C, you would be considered a
“public employee” subject to the Ethics Act and the Regulations of the State Ethics
Commission.
Section 1103(g) of the Ethics Act provides as follows:
Confidential Advice, 10-549
February 24, 2010
Page 2
§ 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 restrictions of Section 1103(g) of the Ethics Act, which apply to former public
officials and former public employees, apply for one year following termination of service
in the public position. Based upon the submitted fact that you terminated service with
the C on [date], which was more than one year ago, you are advised that the restrictions
of Section 1103(g) of the Ethics Act do not currently apply to you. Cf., Germanio,
Advice 07-599.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
This Advice assumes, without deciding, that in your former capacity
as A for the B of the C, you would be considered a “public employee” subject to the
Ethics Act and the Regulations of the State Ethics Commission. The restrictions of
Section 1103(g) of the Ethics Act, which apply to former public officials and former
public employees, apply for one year following termination of service in the public
position. Based upon the submitted fact that you terminated service with the C on
[date], which was more than one year ago, the restrictions of Section 1103(g) of the
Ethics Act do not currently apply to you. 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
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