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HomeMy WebLinkAbout13-516 ADVICE OF COUNSEL April 3, 2013 13-516 This responds to your letters of February 11, 2013, and March 5, 2013, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether, if you would accept a position as either an A or a B with the C Program (hereinafter “the Program”) of Political Subdivision D (hereinafter “the Political Subdivision”) Pennsylvania, you would be considered a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.; and if so, whether the Ethics Act would impose prohibitions or restrictions upon you relative to: (1) your private practice as an E; or (2) your private practice providing F services to clients. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission. You have submitted extensive facts, the material portion of which may be fairly summarized as follows. You are currently employed by the Political Subdivision in a non-supervisory position as a G, with a working title of [title], with the H Unit of the Program. You note that you previously obtained two Advices of Counsel, Confidential Advice, 09-579, issued to you on November 13, 2009, and Confidential Advice, 12-532, issued to you on April 26, 2012, each of which addressed your status under the Ethics Act in your prior capacity as an I with the Program. In your most recent advisory request, you state you are licensed by the Commonwealth of Pennsylvania as a [type of professional]. In your private capacity, you provide F to clients as an independent practitioner. Your clients include individuals who are or are not involved with the Program as well as individuals who were formerly your clients in the J and/or the K of the Program. As an independent practitioner, you have contractual relationships with Ls that provide M for individuals with N for such [type of services]. You also receive M for services that you provide to clients covered under an O and to clients receiving P under a program managed by a company named [name of company] (the “Company”). On February 7, 2013, you were advised by the administrator (the “Administrator”) of the Program that the Political Subdivision will be filling the positions of A in the Q Unit of the Program and B in the R Unit of the Program in the near future and that there is a Confidential Advice, 13-516 April 3, 2013 Page 2 very strong possibility you would be awarded one or both of those positions if you would wish to apply for them. You have submitted a copy of a job description for each of the aforesaid positions, which documents are incorporated herein by reference. You state that on occasion, you have referred clients of your private F practice to the Q and R Units of the Program for assistance with various matters, including [certain matters]. Staff of the Q and R Units of the Program make referrals to outside providers. The Program administration has provided staff of the Q and R Units with a list (the “Program List”) of [type of entities] and individual practitioners who provide S services. The Program List is to be provided to clients or prospective clients needing S services who contact the Program office in person or by telephone. You state that preferential treatment is not to be given to any particular provider on the Program List and that prospective clients are to be given free choice when choosing a provider. Your name, telephone number, and/or office address appear on the Program List and on a similar list (the “Company List”) on the Company’s website. You state that if you would accept the position of A in the Q Unit of the Program or the position of B in the R Unit of the Program, you would neither refer clients coming to the Program specifically to yourself nor direct the staff whom you would supervise to refer clients specifically to you. You state that you would be willing to issue a memorandum to such staff directing them not to refer clients specifically to you in an effort to avoid a conflict of interest or even the appearance of a conflict of interest and that the Administrator has indicated she would be willing to do the same. You have entered into an agreement with a [type of professional] (the “Professional”) under which you and the Professional will share your private office space but will remain independent practitioners. You state that you and the Professional will each exclusively retain the profits generated from your individual practices and that you and the Professional do not intend to form a corporation or other legal entity at this time. You state that the Professional’s function will generally be to [provide certain services] to his clients. You state that it is anticipated that the Professional will see clients in the office during hours you are working at the Program, while you will see clients in the office primarily during times the Professional is not present. You further state that the Professional has submitted documents to various entities and that he will presumably be placed on the Program List and the Company List. You additionally state that the Professional is not a member of your immediate or extended family. In addition to your private F practice, you have a private practice as an E engaged in the T, primarily in the areas of [certain areas]. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you if you would accept either the position of A in the Q Unit of the Program or the position of B in the R Unit of the Program. In particular, you pose questions which may be categorized as follows: If you would accept either of the aforesaid positions with the Program: (1) Whether you would be permitted to continue your private practice as an E and your private F practice; (2) Whether you would be permitted to continue to work with your current F clients; Confidential Advice, 13-516 April 3, 2013 Page 3 (3) Whether you would be permitted to provide F services to clients with whom you are currently working in your private practice and receive M for those services from the Company and/or other Ls; (4) Whether you would be permitted to provide F services to new clients in your private practice and receive M for those services from the Company and/or other Ls; (5) Whether you would be permitted to accept referrals for new clients from the Company and/or other Ls and receive M for the same; (6) Whether you would be permitted to accept referrals from other sources unrelated to your employment with the Political Subdivision and receive M for the same; (7) Whether you would be permitted to advertise the availability of your services in newspapers or other publications through advertisements which would not identify you as a Political Subdivision employee and receive M as a result of providing your services to persons who would respond to such advertisements; (8) Whether you would be permitted to make the availability of your services known to the public during non-Political Subdivision work hours by speaking to groups without identifying yourself as a Political Subdivision employee and receive M as a result of providing your services to persons who would attend such discussions; (9) If one of the Program workers whom you would be supervising or other staff would wish to refer a particular client to you, either because the client requests the referral due to the client’s familiarity with you or because of your experience or expertise in a certain area, whether you would be permitted to accept such referral; (10) Whether the appearance of your name and contact information on the Program List or the Company List would result in a violation of the Ethics Act, and if so, whether any of the safeguards that you have proposed or other possible measures would be effective in avoiding such violation; (11) Whether you could be found to be in violation of the Ethics Act if you, any staff whom you might supervise, or any staff whom you would not supervise would physically hand the Program List or the Company List to clients or other individuals seeking F services who would visit the Program office; (12) Whether you could be found to be in violation of the Ethics Act if you, any staff whom you might supervise, or any staff whom you would not supervise would verbally relay the names and contact information appearing on the Program List or the Company List, including your contact information as well as that of the other providers appearing on such Lists, to clients or other individuals seeking F services who would contact the Program office by telephone; (13) If a client to whom you had previously provided F services at the Program would contact the Program office by telephone with the specific intention of resuming Us with you in your private practice, whether a violation of the Ethics Act would occur if you, staff whom you would supervise, or staff whom you would not supervise would: (a) provide such client with the telephone number of your private practice for the purpose of scheduling Confidential Advice, 13-516 April 3, 2013 Page 4 an appointment; (b) take such client’s telephone number for you to contact the client during non-Political Subdivision business hours for the purpose of scheduling an appointment; or (c) mail a copy of the Program List or the Company List to such client; (14) If a client to whom you had previously provided F services at the Program would come to the Program office in an effort to resume Us with you, whether a violation of the Ethics Act would occur if you, staff whom you would supervise, or staff whom you would not supervise would: (a) provide such client with the Program List with the instruction that the client is free to choose from any provider on the Program List, including you; or (b) mail a copy of the Program List or the Company List to such client; (15) If a client to whom you had previously provided F services at the Program would come to the Program office in an effort to resume Us with you, whether a violation of the Ethics Act would occur if you would: (a) “sign out” from the Program office (by utilizing paid time off work or decreasing the length of your lunch hour) for the purpose of walking the client to your nearby office; or (b) simply leave the Program office for the purpose of scheduling an appointment for the client to be held in the future; (16) Whether the Professional would run afoul of the Ethics Act if he and you would share office space under the above-referenced circumstances, and if so, whether there would be any measures that the Professional, you, the Administrator, or Program staff could take in order to prevent a violation of the Ethics Act from occurring; (17) Whether you would run afoul of the Ethics Act if you and the Professional would share office space under the above-referenced circumstances, and if so, whether there would be any measures that the Professional, you, the Administrator, or Program staff could take in order to prevent a violation of the Ethics Act from occurring; (18) Whether the Professional would violate the Ethics Act if he would refer his clients to you for the purpose of receiving F; (19) Whether you would violate the Ethics Act if you would accept from the Professional (whose function will generally be to [provide certain services] to his clients) referrals of his clients for the purpose of receiving F; (20) What would be the effect under the Ethics Act of the Professional referring his clients to you for the purpose of receiving F, if those clients were referred to the Professional as a result of the distribution of the Program List or otherwise by any staff whom you might supervise at the Program; (21) Whether you would be permitted to receive referrals from the Professional of clients initially referred to him by the Program and receive M for the same from Ls, if you and the Professional would not share office space or expenses or share revenues/split fees and there would be no financial connection between you and him however defined; (22) Whether the Professional would be permitted to receive referrals from you of clients with whom you are involved exclusively in your capacity as a self-employed V and receive M for the same from Ls, if you and the Professional would not share office space or expenses or share revenues/split fees and there would be no financial connection between you and him however defined; Confidential Advice, 13-516 April 3, 2013 Page 5 (23) Whether you would be permitted to accept referrals from the Professional of clients who were referred to him by a source other than the Program (such as the Company, another L, or some other source) and receive M for the same, if you and the Professional would not share office space or expenses or share revenues/split fees and there would be no financial connection between you and him however defined; and (24) Whether you would be permitted to make referrals of clients of your private F practice to staff of the Q and/or R Units of the Program for assistance with various matters. If you would accept the position of B in the R Unit: (25) Whether it would violate the Ethics Act if an R Unit worker would bring an R Unit client, who is also your private client, to such client’s appointment with you at your office and/or otherwise attend/sit in on the appointment; and (26) To the extent that you would be a provider and involved in the W managed by the Company, whether you would be permitted to [perform certain duties and responsibilities set forth in the job description for the position of B in the R Unit], and if so, what concrete guidelines must you follow. 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 none of the questions posed above relate to your current position as a G, with a working title of [title], with the H Unit of the Program. Therefore, this advisory does not address whether you are a “public employee” subject to the Ethics Act in such position. If you would accept a position with the Political Subdivision as an A in the Q Unit of the Program or as a B in the R Unit of the Program, you would in either capacity be a public employee subject to the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the submitted job descriptions for the two aforesaid positions, each of which when reviewed on an objective basis, indicates 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; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j)Voting conflict.-- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or Confidential Advice, 13-516 April 3, 2013 Page 6 by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's Confidential Advice, 13-516 April 3, 2013 Page 7 immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. The Pennsylvania Supreme Court has held that in order to violate Section 1103(a) of the Ethics Act, a public official/public employee “must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit.” Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. The above statutory definition of "conflict" or "conflict of interest" includes two exclusions, hereinafter referred to as the "de minimis exclusion” and the "class/subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. With regard to business activities, Section 1103(a) of the Ethics Act does not prohibit public officials/public employees from having outside business activities or Confidential Advice, 13-516 April 3, 2013 Page 8 employment; however, the public official/public employee may not use the authority of his public position--or confidential information obtained by being in that position--for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89-011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official/public employee is associated in his private capacity or private client(s). Miller, Opinion 89-024; Kannebecker, Opinion 92-010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89-002. In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value 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. Having established the above general principles, your specific questions shall now be addressed. In response to questions (1) through (8) and (24), you are advised as follows. Section 1103(a) of the Ethics Act would impose restrictions upon you in any capacity in which you would be a public employee, rather than in your private capacity(ies). If you would accept a position with the Political Subdivision in which you would be a public employee--such as an A in the Q Unit of the Program or a B in the R Unit of the Program--Section 1103(a) of the Ethics Act would not prohibit you from:  continuing your private practice as an E and your private F practice;  continuing to work with your current F clients;  providing F services to clients with whom you are currently working in your private practice and receiving M for those services from the Company and/or other Ls;  providing F services to new clients in your private practice and receiving M for those services from the Company and/or other Ls;  accepting referrals for new clients from the Company and/or other Ls and receiving M for the same;  accepting referrals from other sources unrelated to your employment with the Political Subdivision and receiving M for the same;  advertising the availability of your services in newspapers or other publications through advertisements which would not identify you as a Political Subdivision employee and receiving M as a result of providing your services to persons who would respond to such advertisements; Confidential Advice, 13-516 April 3, 2013 Page 9  making the availability of your services known to the public during non-Political Subdivision work hours by speaking to groups without identifying yourself as a Political Subdivision employee and receiving M as a result of providing your services to persons who would attend such discussions; or  acting in your private capacity to make referrals of clients of your private F practice to staff of the Q and/or R Units of the Program for assistance with various matters, where your actions would be taken solely in your private capacity and would not involve any use of the authority of your public position or confidential information received by being in your public position. With regard to questions (9) through (15), you are initially advised that, as a practical matter, the actions of staff not under your supervision ordinarily would not be linked to a use of the authority of your public position. Additionally, this advisory is limited to addressing your own prospective conduct as you did not establish legal standing to inquire as to the conduct of others. In response to question (9), you are advised that your acceptance of a referral from a Program worker whom you would be supervising would constitute a pecuniary benefit and could complete the elements for a conflict of interest under Section 1103(a) of the Ethics Act if such referral would result from a use of the authority of your public position or confidential information received by being in your public position. Per Kistler, supra, in order for a violation of Section 1103(a) to be found as to such a referral, you would have to be consciously aware of a private pecuniary benefit for yourself or your business, and then take action in the form of one or more specific steps to attain that benefit. In response to questions (10)-(15), you are advised as follows. If you would accept a position with the Political Subdivision as an A in the Q Unit of the Program or a B in the R Unit of the Program, Section 1103(a) of the Ethics Act would not prohibit your name and contact information from appearing on the Program List or the Company List subject to the condition that you would not use the authority of your public position or confidential information received by being in your public position to be placed on such List(s). Cf., Pera, Advice 90-542. Section 1103(a) of the Ethics Act would not prohibit you from providing or directing staff under your supervision to provide the aforesaid Lists to individuals seeking F services who would visit the Program office or contact the Program office by telephone or to clients to whom you had previously provided F services at the Program, subject to the conditions that: (1) you would not be the only independent practitioner included on such Lists and your entry would not be treated differently than other such entries on the Lists; and (2) you would not use your public position to influence the individual(s) to choose you as a provider of services. You generally would be prohibited from conducting private business activities at the Program/Political Subdivision office. You generally would be prohibited from using the Program/Political Subdivision office as a point of contact for either of your private practices. However, if a client to whom you had previously provided F services at the Program would contact the Program/Political Subdivision office by telephone or in person in an effort to resume Us with you in your private practice, Section 1103(a) of the Ethics Act would not prohibit you from providing or directing staff under your supervision to provide such client with the aforesaid Lists. To otherwise use government equipment/facilities and/or time to facilitate scheduling private appointments with clients—such as providing or directing staff to provide the telephone number of your Confidential Advice, 13-516 April 3, 2013 Page 10 private practice or taking or directing staff to take clients’ telephone numbers for you to contact the clients during non-Political Subdivision business hours—would transgress Section 1103(a) of the Ethics Act unless such use of government equipment/facilities and time for non-governmental purposes would be so strictly limited as to fall within the de minimis exclusion. Cf., Confidential Opinion, 05-001. Section 1103(a) of the Ethics Act would not prohibit you from conducting private business activities during your lunch hour or vacation time at a location separate from the Program/Political Subdivision office. Failing to properly use leave when conducting private business activities could form the basis for a violation of Section 1103(a) of the Ethics Act. Cf., Holt, Order 1153; Cohen, Order 610-R. Questions (16), (18), (22), and (25) cannot be addressed in this advisory because you have not established legal standing to submit your questions as to the conduct of the Professional or any R Unit worker. In response to questions (17), (19), (20), (21), and (23), you are advised as follows. If you would accept a position with the Political Subdivision in which you would be a public employee--such as an A in the Q Unit of the Program or a B in the R Unit of the Program--Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position for the private pecuniary benefit of yourself or either of your private practices. If you would have a financial relationship with the Professional, regarding the sharing of office space or otherwise, conflicts of interest could arise for you in your public position depending upon the circumstances. For example, a conflict could be found to exist as to referral(s) that you or Program staff at your direction would make to the Professional where the Professional would otherwise lack the necessary means to pay his financial obligations owed to you. Cf., Confidential Opinion, 00-007. Under the submitted facts, regardless of whether you would have a financial relationship with the Professional, you generally would have a conflict of interest with regard to making or directing Program staff to make referral(s) to the Professional where there would be a reasonable and legitimate expectation that the Professional would then refer such client(s) to you for the purpose of receiving F. Under the submitted facts, you generally would have a conflict of interest with regard to making or directing Program staff to make referral(s) to the Professional where the Professional would refer other client(s) to you in consideration of or in exchange for receiving referral(s) under the Program. Such an understanding could also result in a violation of Section 1103(c) of the Ethics Act. A violation of Section 1103(a) would not occur as to referral(s) to the Professional to the extent you would not be consciously aware of a private pecuniary benefit for yourself or your business and then take action in the form of one or more specific steps to attain that benefit. Kistler, supra. In response to question (26), you are advised as follows. If you would accept a position with the Political Subdivision as a B in the R Unit of the Program, and would also be a provider and involved in the W managed by the Company, Section 1103(a) of the Ethics Act would not prohibit you from [performing certain duties and responsibilities set forth in the job description for the position of B in the R Unit], subject to the condition that in performing the aforesaid activity(ies), you would not use the authority of your public position or confidential information received by being in your public position for the private pecuniary benefit of yourself, any Confidential Advice, 13-516 April 3, 2013 Page 11 member of your immediate family, or a business with which you or a member of your immediate family is associated. 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: If you would accept a position as either an A or a B with the C Program of Political Subdivision D, Pennsylvania, you would be considered a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your public position or confidential information received by being in your public position for the private pecuniary benefit of yourself, any member of your immediate family, or a business with which you or a member of your immediate family is associated, such as your private practice as an E or your private practice providing F services to clients. The restrictions and requirements of the Ethics Act set forth 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