HomeMy WebLinkAbout15-502/15-1500 Confidential
ADVICE OF COUNSEL
February 5, 2015
15-502/15-1500
This responds to your letters received December 4, 2014, and December 11,
2014, by which you requested a confidential 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. § 1101 et seq., would impose restrictions upon employment of
an A for Governmental Body B following termination of employment with Governmental
Body B; and whether Pennsylvania’s lobbying disclosure law (“Lobbying Disclosure
Law”), 65 Pa.C.S. § 13A01 et seq., would impose prohibitions/requirements upon such
individual if the individual would engage in lobbying.
Facts:
You request a confidential advisory from the Pennsylvania State Ethics
Commission. You have submitted facts that may be fairly summarized as follows.
At the time that you submitted your inquiry, you were employed as A for
Governmental Body B. You have submitted a copy of a position description for the
position of A for Governmental Body B, which document is incorporated herein by
reference.
You stated that you planned to retire from your employment with Governmental
Body B on or about \[date\]. You stated that your future endeavors would include
volunteering and advocating for C. You further stated that in addition to volunteering
and assisting with D efforts such as \[certain activities\], you are interested in helping to
advocate for legislative change.
Based upon the above submitted facts, you posed the following questions:
(1) Whether you would be permitted to advocate before or lobby the Public
Official E and/or the Public Official F for the respective G and H Is in which
you J;
(2) Whether you would be permitted to advocate before or lobby any Public
Official E and/or any Public Official F;
(3) Whether you would be permitted to advocate before or lobby the K;
Confidential Advice, 15-502/15-1500
February 5, 2015
Page 2
(4) What prohibitions or requirements would be imposed upon you with regard
to meeting with any L or M;
(5) What prohibitions or requirements would be imposed upon you if you
would not accept compensation;
(6) What prohibitions or requirements would be imposed upon you if you
would accept compensation or reimbursement of expenses; and
(7) When would your advocacy become lobbying.
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), in conjunction with Section 13A08(a) of
the Lobbying Disclosure Law, 65 Pa.C.S. § 13A08(a), 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.
This advisory will first address your questions relative to the Ethics Act and will
then address the Lobbying Disclosure Law.
As A for Governmental Body B, you would be considered a “public employee”
subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65
Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the position
description, 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.
Consequently, upon termination of employment with Governmental Body B, you
would become a “former public employee” 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:
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February 5, 2015
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 official/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. The Ethics Act’s definition of the term “represent” would
encompass both advocacy and lobbying. Therefore, any distinctions between such
activities would not be significant for purposes of Section 1103(g) of the Ethics Act.
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 a 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
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February 5, 2015
Page 4
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 body with which you would be deemed to have been
associated upon termination of employment with Governmental Body B would be
Governmental Body B in its entirety, including but not limited to individual Public Official
Es and M of Governmental Body B. Therefore, for the first year following termination of
your employment with Governmental Body B, Section 1103(g) of the Ethics Act would
apply and restrict “representation” of a “person” before Governmental Body B with
promised or actual compensation.
Section 1103(g) of the Ethics Act would preclude you from engaging in any
activity that would constitute “representation” of a “person” before Governmental Body
B, where such representation would involve promised or actual compensation. Section
1103(g) of the Ethics Act would not apply when the representation would not involve
promised or actual compensation or when payment to you would be limited to
reimbursement only for reasonable and necessary actual expenses. Cf., Confidential
Opinion, 07-012; Moore, Opinion 04-004; Confidential Opinion, 97-012; DiIorio, Advice
08-600.
Accordingly, you are advised that during the first year following termination of
your employment with Governmental Body B, Section 1103(g) of the Ethics Act would
prohibit you from advocating before or lobbying Public Official E(s)--including but not
limited to the Public Official E for the G I in which you J--with promised or actual
compensation, as such activity(ies) would constitute prohibited representation before
Governmental Body B as set forth above.
You are advised that Section 1103(g) of the Ethics Act would not prohibit you
from advocating before or lobbying Public Official F(s) or from advocating before or
lobbying the K, as long as in performing the aforesaid activity(ies), you would not
engage in prohibited representation before Governmental Body B as set forth above.
You are further advised that Section 1103(g) of the Ethics Act would not prohibit
you from “meeting with” L(s) or M subject to the condition that in so doing, you would
not engage in any activity(ies) that would constitute prohibited representation before
Governmental Body B as set forth above.
The Lobbying Disclosure Law, 65 Pa.C.S. § 13A01 et seq., defines the term
“lobbying” and the related terms “administrative action,” “legislative action,” and
“legislation” as follows:
"Lobbying."
An effort to influence legislative action or
administrative action in this Commonwealth. The term
includes:
(1) direct or indirect communication;
(2) office expenses; and
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February 5, 2015
Page 5
(3) providing any gift, hospitality, transportation or lodging
to a State official or employee for the purpose of
advancing the interest of the lobbyist or principal.
"Administrative action."
Any of the following:
(1) An agency’s:
(i) proposal, consideration, promulgation or
rescission of a regulation;
(ii) development or modification of a statement of
policy;
(iii) approval or rejection of a regulation; or
(iv) procurement of supplies, services and
construction under 62 Pa.C.S. (relating to
procurement).
(2) The review, revision, approval or disapproval of a
regulation under the act of June 25, 1982 (P.L.633,
No.181), known as the Regulatory Review Act.
(3) The Governor’s approval or veto of legislation.
(4) The nomination or appointment of an individual as an
officer or employee of the Commonwealth.
(5) The proposal, consideration, promulgation or
rescission of an executive order.
"Legislative action."
An action taken by a State official or
employee involving the preparation, research, drafting,
introduction, consideration, modification, amendment,
approval, passage, enactment, tabling, postponement,
defeat or rejection of:
(1) legislation;
(2) legislative motions;
(3) a veto by the Governor; or
(4) confirmation of appointments by the Governor or
appointments to public boards or commissions by a
member of the General Assembly.
"Legislation."
Bills, resolutions, amendments and
nominations pending or proposed in either the Senate or the
House of Representatives. The term includes any other
matter which may become the subject of action by either
chamber of the General Assembly.
65 Pa.C.S. § 13A03.
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February 5, 2015
Page 6
A “lobbyist” or “lobbying firm” engages in lobbying on behalf of a “principal” for
“economic consideration,” and a principal lobbies on its own behalf or through a lobbyist
or lobbying firm:
"Lobbyist."
Any individual, association, corporation,
partnership, business trust or other entity that engages in
lobbying on behalf of a principal for economic consideration.
The term includes an attorney at law while engaged in
lobbying.
"Lobbying firm."
An entity that engages in lobbying for
economic consideration on behalf of a principal other than
the entity itself.
"Principal."
An individual, association, corporation,
partnership, business trust or other entity:
(1) on whose behalf a lobbying firm or lobbyist engages
in lobbying; or
(2) that engages in lobbying on the principal’s own
behalf.
"Economic consideration."
Anything of value offered or
received. The term includes compensation and
reimbursement for expenses.
65 Pa.C.S. § 13A03. The Lobbying Disclosure Law defines the term “economic
consideration” to include reimbursement for expenses.
If you would engage in “lobbying” as a “principal” or “lobbyist,” you would be
subject to the registration and reporting requirements of Sections 13A04 and 13A05 of
the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A05, unless exempt pursuant to
Section 13A06 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A06. Additionally, as a
lobbyist or principal, you would be required to observe the applicable prohibitions of
Section 13A07 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A07.
Lastly, your questions have only been addressed under Section 1103(g) of the
Ethics Act and the Lobbying Disclosure Law; the applicability of any other statute, code,
ordinance, regulation, or other code of conduct other than the Ethics Act and the
Lobbying Disclosure Law has not been considered.
Conclusion:
As A for Governmental Body B, 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 the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et seq. Upon termination of your employment with Governmental Body B,
you would become a “former public employee” subject to Section 1103(g) of the Ethics
Act. The former governmental body would be Governmental Body B in its entirety,
including but not limited to individual Public Official Es and M of Governmental Body B.
For the first year following termination of your employment with Governmental Body B,
Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person”
before Governmental Body B with promised or actual compensation. The restrictions of
Section 1103(g) of the Ethics Act outlined above must be followed.
If you would engage in “lobbying” as a “principal” or “lobbyist,” as Pennsylvania’s
lobbying disclosure law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A01 et seq.,
defines those terms, you would be subject to the registration and reporting requirements
of Sections 13A04 and 13A05 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04,
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February 5, 2015
Page 7
13A05, unless exempt pursuant to Section 13A06 of the Lobbying Disclosure Law, 65
Pa.C.S. § 13A06. Additionally, as a lobbyist or principal, you would be required to
observe the applicable prohibitions of Section 13A07 of the Lobbying Disclosure Law,
65 Pa.C.S. § 13A07.
Your questions have only been addressed under Section 1103(g) of the Ethics
Act and the Lobbying Disclosure Law.
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.
Pursuant to Section 13A08(a) of the Lobbying Disclosure Law, a requester who
truthfully discloses all material facts in a request for an advisory and who acts in good
faith based upon a written Advice or Opinion of the Commission issued to the requester
shall not be held liable for a violation of the Lobbying Disclosure Law.
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