HomeMy WebLinkAbout15-514 Confidential
ADVICE OF COUNSEL
March 6, 2015
15-514
This responds to your letters dated December 18, 2014, and February 2, 2015,
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 restrictions upon employment of an A of the B
within Commonwealth Agency C following termination of Commonwealth employment.
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.
At the time that you submitted your initial advisory request letter dated December
18, 2014, you were employed as the A of the B within Commonwealth Agency C. You
stated that your duties in such position included \[certain duties\]. You stated that your
duties also included D of the E of F, which is a G servicing approximately \[number\] state
agencies, including Commonwealth Agency C, \[list of state agencies\], and others. You
stated that you worked with such state agencies on F to \[achieve a certain result\].
You stated that you were also designated by former Public Official H as the I for
the J of the K, which is an L under the charge of the M situated within the N. You stated
that the O asked you to form a P consisting of \[various representatives, including
representatives of particular state agencies\]. You further stated that the P had no
formal charter or operating by-laws and that it was not formalized by any writing but was
“ad hoc” in nature. You additionally stated that the purpose of the P was to provide
input from different agencies as to the requirements of the Q and that you worked with
the agency representatives on the P in a collaborative approach in \[performing a certain
function\].
You stated that the only agency within which you had any actual authority was
Commonwealth Agency C, which is where you served the entirety of your state service.
You stated that you would be retiring from your employment with Commonwealth
Agency C effective \[date\]. You further stated that you had been offered employment in
Confidential Advice, 15-514
March 6, 2015
Page 2
the private sector with an R which does business with the Commonwealth, county and
municipal governments, and other states.
In your subsequent advisory request letter dated February 2, 2015, you stated
that you did not have a position description for your position as the A of the B within
Commonwealth Agency C.
Based upon the above submitted facts, you seek guidance as to whether Section
1103(g) of the Ethics Act would impose prohibitions or restrictions upon you following
termination of your Commonwealth employment. In particular, you pose the following
questions:
(1) How broadly the phrase “governmental body with which he has been
associated” would be interpreted; and
(2) Whether you would be precluded from engaging in activities with any of
the agencies with which you worked on F or the P.
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.
Given that the submitted facts do not include an official Commonwealth Position
Description for your position as the A of the B within Commonwealth Agency C, this
Advice assumes, without deciding, that in your capacity as the A of the B within
Commonwealth Agency C, 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.
Consequently, upon termination of employment with Commonwealth Agency C,
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:
Confidential Advice, 15-514
March 6, 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.
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
available to the general public, but this must not be done in an effort to indirectly
Confidential Advice, 15-514
March 6, 2015
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 would be deemed to have been
associated upon termination of employment with Commonwealth Agency C would be
Commonwealth Agency C in its entirety, including but not limited to the B. Therefore,
for the first year following termination of your employment with Commonwealth Agency
C, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a
“person” before Commonwealth Agency C.
Having established the above general principles, your specific questions shall
now be considered.
Your first question has been addressed above.
In response to your second question, you are advised as follows.
Section 1103(g) of the Ethics Act would not prohibit you from accepting
employment in the private sector with an R which does business with the
Commonwealth, county and municipal governments, and other states. However, during
the first year following termination of your employment with Commonwealth Agency C,
Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies)
that would involve prohibited representation before Commonwealth Agency C as set
forth above. Section 1103(g) of the Ethics Act would not prohibit you from engaging in
representation before other agencies with which you worked on F or the P. However,
where such other agency(ies) would have involvement with Commonwealth Agency C,
you would need to exercise caution to ensure that you would not engage in prohibited
representation before Commonwealth Agency C.
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. Specifically not addressed herein is the
applicability of the S.
Confidential Advice, 15-514
March 6, 2015
Page 5
Conclusion:
This Advice assumes, without deciding, that in your capacity as the
A of the B within Commonwealth Agency C, 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 Commonwealth Agency
C, you would become a “former public employee” subject to Section 1103(g) of the
Ethics Act. The former governmental body would be Commonwealth Agency C in its
entirety, including but not limited to the B. For the first year following termination of your
employment with Commonwealth Agency C, Section 1103(g) of the Ethics Act would
apply and restrict “representation” of a “person” before Commonwealth Agency C. 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