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HomeMy WebLinkAbout10-617 SHAFER ADVICE OF COUNSEL October 15, 2010 Amanda Shafer 1208 Capitol St. Harrisburg, PA 17102 10-617 Dear Ms. Shafer: This responds to your letter dated August 29, 2010, 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 May 2009, served as an Administration Officer 2 for the Pennsylvania Historical and Museum Commission (“PHMC”). 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 an Administration Officer 2, in the role of Webmaster, for the PHMC until May 2009, at which time you left the aforesaid position. You state that you recently have been contacted by the PHMC with regard to a possible contract to perform web design and maintenance for the PHMC. 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 contracting to perform work for the PHMC. 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. Preliminarily, it is noted that the submitted facts do not include an official position description for your former position as an Administration Officer 2 for the PHMC. This advice assumes, without deciding, that in your former capacity as an Administration Officer 2 for the PHMC, 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: Shafer, 10-617 October 15, 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. A former public official or former public employee may not contract with his former governmental body during the first year following termination of public service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Shaub, Order 1242; Shienvold, Opinion 04-001; Confidential Opinion, 97-008; Confidential Opinion, 93-005. However, based upon the submitted fact that you terminated service with the PHMC in May 2009, 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 an Administration Officer 2 for the Pennsylvania Historical and Museum Commission (“PHMC”), 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 PHMC in May 2009, 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 Shafer, 10-617 October 15, 2010 Page 3 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