HomeMy WebLinkAbout17-522 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
'O. SOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
April 17, 2017
To the Requester:
17 -522
This responds to your letter dated February 10, 2017, 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
PC-S. § 1101 et se q., would impose restrictions upon employment of an A for the B
following term ing —tion of employment with the B.
Facts: As a former A for the B, you request a confidential advisory from the
emission. It is administratively noted that you previously obtained an Advice,
[citation], issued [date], regarding the post - employment restrictions of the Ethics Act.
On [date], you went on [type of leave] from your position as the A for the B. Your
employment with the B was terminated on [date].
As the A for the B, you were responsible for the day -to -day operations of the C
and oversaw contracting. Some contracts were awarded through a process that
included Ds, while some Es with ongoing relationships with the B were awarded
contracts through a process that did not involve Ds.
You are interested in pursuing employment with the F ( "the Agency ") of an E
( "the Organization ") that is funded by the B. The contract for the Agency has not been
subject to the D process for more than five years and is renewed annually if there are
no concerns with the G. Four years ago, you participated in the D process for the
Organization's H, and you negotiated contract amounts annually. You state that due to
the I that was implemented approximately four to five years ago, you were responsible
for determining Js for various levels of K for all Ls, including the Organization. The Js
are the same for all Ls and are still in place today. The Organization is reimbursed" for
the Ks that it provides through a combination of [types of funds].
Based upon the above submitted facts, you ask whether your pursuit and
acceptance of a leadership position with the Agency would be a violation of Section
1103(a), Section 1103(g), or Section 1103(i) of the Ethics Act.
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
FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethicsPstate.pa.us
Confidential Advice, 17 -522
April 7
Page 2
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 noted in [citation], in the former capacity as the A for the B, you were a public
official/public employee sub'ect to the Ethics Act. The restrictions of Section 1103(g) of
the Ethics Act, 65 Pa.C.S. 1103(%), which applied to you during the first year following
termination of your employment with the B (see, [citation]), have ceased to apply to you.
You would not be subject to the restrictions of Section 1103(i) of the Ethics Act,
65 Pa.C.S. § 1103(i) , because those restrictions only apply to former executive -level
State employees.
Pursuant to Section 1103(a) of the Ethics Act, a public officiallpublic employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employyee of the authority of his office or
employment or any confidential information received through
his holding pu blic 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 industrryy, 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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
conflict or conflict of interest, 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public officelemployment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public officiallpublic 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
Confidential Advice, 17 -522
April 7,
Page 3
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.
With regard to Section 1103(x) of the Ethics Act, an advisory cannot provide a
ruling as to past conduct. You are generally dvised that the elements of a violation of
Section 1103(a) of the Ethics Act would y not be established as a result of your
prospectivel entering into a business/employment relationship with the Agency subject
to the conditions that you: (1) did not use the authority of your public position in
matter(s) pertaining to the Agency when you had an actual or reasonable expectation
that you would enter into a business/employment arrangement with the Agency or
would otherwise receive a private pecuniary benefit relating to the Agency; and (2) did
not otherwise use the authority of your public position or confidential information
received as a result of being in your public position in furtherance of securing a
business/employment arrangement with the Agency or other private pecuniary benefit
relating to the Agency. Cf., Desmond, Opinion 08 -004.
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.
Conclusion. Based upon the submitted facts that: (1) on [date], you went on
[type of eave] from our position as the A for the B; (2) your employment with the B was
terminated on [dateJ1 (3) as the A for the B, you were responsible for the day -to -dayy
operations of the C and oversaw contracting; (4) some contracts were awarded through
a process that included Ds, while some Es with ongoing relationships with the B were
awarded contracts through a process that did not involve Ds; (5) you are interested in
pursuing employment with the F ( "the Agency ") of an E ( "the Organization ") that is
funded by the B; (6) the contract for the Agency has not been subject to the D process
for more than five years and is renewed annually if there are no concerns with the G; (7)
four .years ago, you participated in the D process for the Organization's H, and you
negotiated contract amounts annually; (8) due to the I that was implemented
approximately four to five years ago, you were responsible for determining Js for
various levels of K for all Ls, including the Organization; (9) the Js are the same for all
Ls and are still in place today; and (10) the Organization is reimbursed for the Ks that it
provides through a combination of [types of funds], you are advised as follows.
As noted in jcitation], in the former capacity as the A for the B, you were a public
official/public employee subject to the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. § 1101 et seq. The restrictions of Section 1103(g) of the Ethics Act,
65 Pa.C.S. § 1103(g), which applied to you during the first year following termination of
your employment with the B (see, [citation]), have ceased to apply to you. You would
not be subject to the restrictions of Section 1103(i) of the Ethics Act, 65 Pa.C.S. §
1103(i), because those restrictions onl apply to former executive -level State
employees. With regard to Section 1103(aNf the Ethics Act, 65 Pa.C.S. § 1103(a), an
advisory cannot provide a ruling as to past conduct. You are generally advised that the
elements of a violation of Section 1103(a) of the Ethics Act would not be established as
a result of your prospectively entering into a business/employment relationship with the
Agency subject to the conditions that you: (1) did not use the authority of your public
position in matter(s) pertaining to the Agency when you had an actual or reasonable
expectation that you would enter into a business/employment arrangement with the
Agency or would otherwise receive a private pecuniary benefit relating to the Agency;
and (2) did not otherwise use the authority of your public position or confidential
information received as a result of being in your public position in furtherance of
securing a business/employment arrangement with the Agency or other private
pecuniary benefit relating to the Agency.
Confidential Advice, 17 -522
Aril 17, 2017
Page 4
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 actually
received at the Commission within thirty (30) days of the date of this
Advic-pursuant to 57 Pa. Code § 73.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (777- 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