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Home My WebLink About16-567 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL December 9, 2016 To the Requester: 16 -567 This responds to your letters dated October 14, 2016, and November 2, 2016, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act"), 65 PA'S. § 1101 et sseeq , would impose restrictions upon em loyment of an for Commonwealth Agency B following termination of Commonwealth employment. f=acts: You request a confidential advisory from the Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as the A for Commonwealth Agency B. You have submitted a copy of the classification specifications for the position of A for Commonwealth Agency B d'ob ob code [number]), which document is incorporated herein by reference. It is noted that the submitted facts do not include an official Commonwealth position description for your position as the A for Commonwealth Agency B. In your current position with Commonwealth Agency B, you have overseen the C Bureau and the D Bureau within Commonwealth Agency B. You state that you will soon be retiring from your employment with Commonwealth Agency B. You anticippate that you will have business relationships with entities that are applying for or hold Es issued by Commonwealth Agency B or with Fs for such entities. The aforesaid Es are typically issued by the C Bureau. You may also have business relationships with entities that apply for Gs issued by the D Bureau. You express your understanding that pursuant to Section 1103(g) of the Ethics Act, you would be prohibited from representing anyone before Commonwealth Agency B for promised or actual compensation for one year following termination of your employment with Commonwealth Agency B. You ask whether Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon you with regard to: (1) Submitting an H to Commonwealth Agency B on an entity's behalf in an uncontested matter; FAX: (717) 787 -0806 0 Web Site: www.ethics.state,pa.us 0 e -mail: ethicsQstate.pa.us Confidential Advice, 16 -567 December 9, 2016 Page 2 (2) Inquiring about the status of an entity's H; or (3) Testifying before Commonwealth Agency B as an I on behalf of a J. You further seek guidance as to whether Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon you with regard to engaging in interactions with Commonwealth Agencyy B and its Ks and employees that would not involve promised or actual compensation. In particular, you ask whether the Ethics Act would permit you to: (1) Telephone or visit former colleagues at work as long as you would not discuss with them any matters that may be before them; (2) Attend a public meeting held by Commonwealth Agency B; (3) Discuss with Ks and employees of Commonwealth Agency B your recollection of past actions; or (4) Discuss with Ks and employees of Commonwealth Agency B your opinion on some future course of action, where you would engage in such interactions without promised or actual compensation. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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. As the A for Commonwealth Agency B, 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. Consequently, upon termination of your Commonwealth employment, you would become 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 Confidential Advice, 16 -567 December 9, M-6 Page 3 above prohibition shall be invoked only when the recruitment 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(1) 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(1) would not restrict you .Tram Bing em oye y, 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(8) 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 re rp esent a person, with promised or actual compensation, on any matter before the aovernmental bodv with which he has been associated for one year atter 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 Confidential Advice, 16 -567 ecern er 9, 2016 Page 4 subdivision by which the public official or employee is or has been employ m ed or to which the public official or e.ployee 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 off iciavp—ubi'c employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95-0137. 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 ggovernmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 59 -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 officiallpublic 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 controf but extends to he entire body. See, Le islative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -00 Sharp, Opinion 90-009-R. The governmental body with which you would be deemed to have been associated upon termination of your Commonwealth employment would be Commonwealth Agency B in its entirety. Therefore, for the first year following Confidential Advice, 16 -567 December 9, 2016 Page 5 termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before Commonwealth Agency B with promised or actual compensation. Your first set of specific questions shall now be addressed. Your first three questions --as posed - -do not indicate: (1) how you would go about submitting an H to Commonwealth Agency B (for example, would you submit it in Vor by mail, would your name appear on the H, etc.); (2) whether the status of an H is a matter of public record; or (3) whether your testifying before Commonwealth Agenc B as an I on behalf of a J would involve promised or actual compensation. Therefore, the necessary response to your first two questions is that during he first year following termination of your Commonwealth employyment, Section 1103(g) of the Ethics Act would prohibit you from: (1) submitting an H to Commonwealth Agency B on an entity's behalf, even in an uncontested matter; or (2) inquiring about the status of an entity's H, unless you would do so without engaging in prohibited representation before Commonwealth Agency B as set forth above. In response to your third question, you are advised that Section 1103Vaofan the Ethics Act would prohibit you from testifying before Commonwealth Agency 1 on behalf of a J where your activity(ies) would involve promised or actual compensation. Your second set of specific questions shall now be addressed. These qquestions - -as posed — specifically state that you would perform the M3( activity(ies) without or actual compensation. On its face, Section 1103(8) of the Ethics Act only applies to restrict activitFes of a former public officiallpublic employee that involve promised or actual compensation. Therefore, the necessary response to your second set of questions as posed is that Section 1103(g) of the Ethics Act would not prohibit you from: (1) telephoning or visiting former colleagues at their workplace; (2) attending a public meeting held by Commonwealth Agency B; (3) discussing with Ks and employees of Commonwealth Agency B your recollection of past actions; or (4) discussing with Ks and employees of Commonwealth Agency B your opinion on some future course of action, where your activity(ies) would not involve promised or actual compensation. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(8) and Section 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. L- astly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the appplicability 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: As the A for Commonwealth Agency B, you would be considered a pudic o vial /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 Confidential Advice, 16 -567 December 9, 20 I 6 Page 6 the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec.. Upon termination of your Commonwealth employment, you would become a _16rmer public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(8) and Section 1103(i) of the Ethics Act, 65 Pa.C.S. §§ 1103(8), 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 would be deemed to have been associated upon termination of your Commonwealth employment would be Commonwealth Agency B in its entirety. 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 Commonwealth Agency with promised or actual compensation. 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 writingg and must be actual! received at the Commission within thirty (30) days of the date of ►s Advice pursuant to 59 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 (717-787-01806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, tA .In M. Nittie Chief Counsel