HomeMy WebLinkAbout11-558 Confidential
ADVICE OF COUNSEL
October 21, 2011
11-558
This responds to your letter dated September 7, 2011, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose any restrictions upon employment of an A for
Entity B within Commonwealth Agency C following termination of Commonwealth
service.
Facts:
You request a confidential 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.
On [date], you resigned from your public position as an A for Entity B within
Commonwealth Agency C to become the D of a not-for-profit organization named the
[name of organization], hereinafter referred to as the “Organization.” You state that the
Organization has over [number] members and that the Organization represents and
serves its dues-paying members in every aspect of Pennsylvania’s [type of industry].
You state that the Organization is responsible for maintaining the E. You state
that the Organization has statutory and regulatory administrative responsibilities with
regard to [certain activities]. The Organization also has responsibilities pertaining to the
administration and development of the F G pursuant to the [Act and cite]. The
Organization is statutorily entitled to reimbursement from the F for those expenses
actually incurred in the administration and development of the F G and is responsible for
advising Entity B when called upon. Id. You state that the Organization’s Board, D, and
members routinely attend Entity B meetings and provide Entity B with relevant data on
the [type of industry] in the Commonwealth.
You state that your specific duties as the D of the Organization include: (1) day-
to-day administrative responsibilities in the Organization’s office; (2) administrative
direction of the F operations; (3) interaction with Entity B and the H; (4) acting as a
public relations point of contact for all media matters pertaining to the Organization; and
(5) the submission of an itemized budget of the Organization’s projected expenses for
approval by Entity B.
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you following termination of your Commonwealth service. In particular, you pose
the following questions:
Confidential Advice, 11-558
October 21, 2011
Page 2
(1) Whether the Ethics Act would prohibit your attendance and appearance at
an Entity B meeting;
(2) Whether the Ethics Act would prohibit you from making a presentation to
Entity B of factual information (including data relevant to the current state
of [certain matters] in the Commonwealth) without requesting any action
by Entity B;
(3) Whether your attendance at an Entity B meeting would constitute a
“personal appearance” before Entity B;
(4) Whether your “mere recitation” of factual information or data to Entity B
would constitute “personal appearances” before Entity B; and
(5) Whether, in your capacity as the D of the Organization, your submission of
an itemized budget of the Organization to Entity B would be considered
“representation” before your former governmental body.
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, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
In the former capacity as an A for Entity B within Commonwealth Agency C, 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 service as an A with Entity B, you became 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:
Confidential Advice, 11-558
October 21, 2011
Page 3
§ 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 “represent” 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 public
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
Confidential Advice, 11-558
October 21, 2011
Page 4
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 are deemed to have been associated
upon termination of public service as an A for Entity B within Commonwealth Agency C
is Commonwealth Agency C in its entirety, including but not limited to Entity B.
Therefore, for the first year following termination of your service as an A for Entity B,
Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person”
before Commonwealth Agency C, including but not limited to Entity B.
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first four specific questions, you are advised as follows.
During the one-year period of applicability of Section 1103(g) of the Ethics Act, if, as the
D of the Organization, you would: (1) attend/appear at an Entity B meeting; (2) make a
presentation to Entity B of factual information (including data relevant to the current
state of [certain matters] in the Commonwealth) without requesting any action by Entity
B; or (3) recite factual information or data to Entity B, such conduct would constitute a
“personal appearance” before Entity B on behalf of the Organization and would be
contrary to Section 1103(g) of the Ethics Act.
In response to your fifth specific question, you are advised as follows. Section
1103(g) of the Ethics Act would prohibit you from submitting an itemized budget of the
Organization to Entity B in person or through any submission that would name or
otherwise identify you.
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 or employment, or confidential information received by being in
the public position, 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:
In the former capacity as an A for Entity B within Commonwealth
Agency C, 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
as an A with Entity B, you became a “former public official” subject to Section 1103(g) of
Confidential Advice, 11-558
October 21, 2011
Page 5
the Ethics Act. The former governmental body is Commonwealth Agency C in its
entirety, including but not limited to Entity B. For one year following termination of your
service as an A for Entity B, Section 1103(g) of the Ethics Act would prohibit you from
engaging in any activity that would constitute prohibited representation before the
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
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