HomeMy WebLinkAbout15-517 Bernstein
ADVICE OF COUNSEL
March 12, 2015
Luke Bernstein
Senior Vice President for External Relations
Pennsylvania Bankers Association
3897 North Front Street
Harrisburg, PA 17110
15-517
Dear Mr. Bernstein:
This responds to your letter dated February 10, 2015, by which you requested an
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 a Deputy Chief
of Staff for the Governor’s Office following termination of Commonwealth employment.
Facts:
You request an 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 January 21, 2015, your employment as a Deputy Chief of Staff for the
Governor’s Office ended. You state that you did not have a written job description for
your position with the Governor’s Office.
In your capacity as a Deputy Chief of Staff for the Governor’s Office, your duties
included serving as a general liaison between the Governor’s Office and the
Pennsylvania Department of Revenue (“Department of Revenue”), the Pennsylvania
Human Relations Commission (“PHRC”), the Pennsylvania Liquor Control Board
(“PLCB”), and the Pennsylvania Gaming Control Board (“Gaming Control Board”). As a
liaison to the Department of Revenue, you assisted in the development of legislation,
regulations, and administrative policies, provided assistance in the resolution of issues
relating to contracts and budgetary and personnel matters when requested, and helped
address issues of controversy relating to operations. Your responsibilities as a liaison
to the PHRC, the PLCB, and the Gaming Control Board did not involve contractual,
budgetary, or personnel matters and were limited to sharing information between the
Governor’s Office and the agencies and providing advice and assistance when
requested.
Bernstein, 15-517
March 12, 2015
Page 2
You managed the Governor’s Office of Public Liaison, which involved supervising
the activities of three deputy directors and an assistant and the activities of advisory
commissions and councils to the Governor’s Office. You state that you did not serve on
any of the commissions or advisory councils for which the Office of Public Liaison had
oversight responsibility. You also managed the Governor’s regional staff and offices
and the Governor’s Office of Correspondence.
You state that you assisted the Governor in the review of resolutions presented
to the Executive Board. You also provided strategic advice to the Governor on a
multitude of issues.
You are currently employed as Senior Vice President for External Relations for
the Pennsylvania Bankers Association (the “Association”). You state that in the
aforesaid capacity, you will be representing solely the interests of the Association and
not any of the individual banks, savings associations, or other organizations which are
members of the Association.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you following termination of
your Commonwealth employment. In particular, you seek guidance as to how you
should act in order to avoid a violation of Section 1103(g) of the Ethics Act in a situation
where you would be engaged in a meeting with individual(s) before whom you would be
permitted to represent the Association, and individual(s) before whom you would not be
permitted to represent the Association would unexpectedly join the meeting.
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.
In the former capacity as a Deputy Chief of Staff for the Governor’s Office, you
would be considered a public official/public employee and an “executive-level State
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; Stephens, Advice 08-543.
Consequently, upon termination of Commonwealth employment, you became a
former public official/public employee and a former executive-level State employee
subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act.
Section 1103(i) restricts former executive-level State employees as follows:
§ 1103. Restricted activities
(i)Former executive-level employee.--
No former
executive-level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this Commonwealth, provided that the
above prohibition shall be invoked only when the recruitment
Bernstein, 15-517
March 12, 2015
Page 3
or inducement is accomplished by a grant or loan of money
or a promise of a grant or loan of money from the
Commonwealth to the business or corporation recruited or
induced to expand.
65 Pa.C.S. § 1103(i).
Section 1103(i) restricts the ability of a former executive-level State employee to
accept employment or otherwise engage in business relationships following termination
of State service, under certain narrow conditions. The restrictions of Section 1103(i)
apply even where the business relationship is indirect, such as where the business in
question is a client of a new employer, rather than the new employer itself. See,
Confidential Opinion, 94-011. However, Section 1103(i) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for a business subject to the conditions that you did not actively
participate in recruiting such business to Pennsylvania, and that you did not actively
participate in inducing such business to open or expand a plant, facility, or branch in
Pennsylvania, through a grant or loan of money or a promise of a grant or loan of
money from the Commonwealth of Pennsylvania.
Unlike Section 1103(i), Section 1103(g) does not prohibit a former public
official/public employee from accepting a position of employment. However, 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:
§ 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
Bernstein, 15-517
March 12, 2015
Page 4
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
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 Commonwealth employment, hereinafter collectively referred to as
your “former governmental body,” consists of the Governor’s Office in its entirety,
including but not limited to the Executive Offices and the Governor’s Office of
Administration, as well as any boards, commissions, or other governmental bodies that
you served as an employee, appointee/member, or designee except for those whose
members are not considered public officials subject to the Ethics Act. Cf., Stephens,
Bernstein, 15-517
March 12, 2015
Page 5
supra; Hafer, Opinion 04-016. Therefore, for the first year following termination of your
Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict
“representation” of a “person” before your former governmental body as delineated
above.
You are advised that during the first year following termination of your
Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from
performing any job duty(ies) for your new employer, the Association, that would involve
prohibited representation before your former governmental body as set forth above.
You are further advised that where you would be engaged in a meeting with
individual(s) before whom you would be permitted to represent the Association, and
individual(s) before whom you would not be permitted to represent the Association
would unexpectedly join the meeting, it would appear to be impossible, as a practical
matter, for you to remain engaged in such meeting without running afoul of Section
1103(g) of the Ethics Act.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Sections 1103(g) and 1103(i) 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 Governor’s Code of Conduct.
Conclusion:
In the former capacity as a Deputy Chief of Staff for the Governor’s
Office, you would be considered a public official/public employee and an “executive-
level State 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 Commonwealth employment, you
became a former public official/public employee and a former executive-level State
employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics
Act, 65 Pa.C.S. §§ 1103(g), 1103(i). Under Section 1103(i) of the Ethics Act, you would
not be prohibited from being employed by, receiving compensation from, assisting, or
acting in a representative capacity for a business subject to the conditions that you did
not actively participate in recruiting such business to Pennsylvania, and that you did not
actively participate in inducing such business to open or expand a plant, facility, or
branch in Pennsylvania, through a grant or loan of money or a promise of a grant or
loan of money from the Commonwealth of Pennsylvania.
The governmental body with which you are deemed to have been associated
upon termination of Commonwealth employment, hereinafter collectively referred to as
your “former governmental body,” consists of the Governor’s Office in its entirety,
including but not limited to the Executive Offices and the Governor’s Office of
Administration, as well as any boards, commissions, or other governmental bodies that
you served as an employee, appointee/member, or designee except for those whose
members are not considered public officials subject to the Ethics Act. For the first year
Bernstein, 15-517
March 12, 2015
Page 6
following termination of your Commonwealth employment, Section 1103(g) of the Ethics
Act would apply and restrict “representation” of a “person” before your former
governmental body as delineated above. The restrictions as to representation outlined
above must be followed. During the first year following termination of your
Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from
performing any job duty(ies) for your new employer, the Pennsylvania Bankers
Association, that would involve prohibited representation before your former
governmental body as set forth above. 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