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HomeMy WebLinkAbout19-525 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: X STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVIC'E OF COUNSEL May 31, 2019 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 19-525 This responds to your letter dated April 2, 2019, 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 P-a-3CS. 1101 et s, would impose restrictions upon employment of the A for the B in the C following termination of Commonwealth employment. Facts: You request a confidential advisory from the Commission regarding the os -employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently ernfloyed as the A for the B in the C. You state that in your current Commonwealth position, you are responsible for D. You are considering retiring from your Commonwealth employment. You have received offers to talkout future job opportunities, one of which would involve assisting E at F with Gs in a [trpe of capacity]. Other job opportunities would involve working for Hs, that currently do business or have done business with the Commonwealth, including the C and the I. 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. Discussion: It is initially noted that pursuant to Sections 1107(10) and 11 07(l 1) of the Ethics c , 65 la.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. Confidential Advice, 19-525 May 31, 2019 Page 2 Pursuant to Section 1103(a) of the Ethics Act, a public official/public 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, 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 employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the priv e pecuniary enefit 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 blic or a subclass consisting of an industry, occupation or other group which includes the 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 ower 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. 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 office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public 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 authority of office is not limited mer=yoting, 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. Sections 1103(b) and 11.03�c) of the Ethics Act provide, in part that no person shall offer or give to a public off icia/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based u&on the understanding that the vote, official action, or judgment of the public 0 ictal/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 questions presented. Confidential Advice, 19-525 191—ay 31207'9 -- - --------- Page 3 As the A for the B in the C, you would be considered a public official/public employee and an "executive -level State employee" sublect to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 P�a.C.S. § 1102; 51 Pa. Code 11-1. Consequently, upon termination of Commonwealth employment, you would become a former public official/public employee and a former executive -level State employee subject to the restrictions of Section 11 03(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 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.& § 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 Section1103(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 m eing 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 accetinya position of employment. However, it does restrict the former public officially i is 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 ciovernmental bodv with which he has been associated for one year aver ne ieaves TnaT r)oay. Confidential Advice, 19-525 May 31, 2019 Page 4 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 foll owing: personal appearances, negotiations, lobbying and su t% bid or contract proposals which are signed by or contain e 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 ywithin State government or a political subdivision by whichthe 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 officiaVp`uY`icemployee himself, Confidential Opinion, 93-005, as well as a new governmentalemployer. 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 sigpedby or contain the name of i the former public official/public al/public employee; (4) participating n 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 roposal, document, or bid, if submitted to or reviewed by the former governmental ody, constitutes an attempt to influence the former governmental body. Section 11P("N 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. Shav, Opinion 91-012, However, if such a pre-existing contract does not involve the uniTWK6re 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. Opinion 95-011. A former public official/public employee may assist in the preparation of any documents presented to his former governmental gody. However, the former public Confidential Advice, 19-525 Page 5 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 pfh�is respect should not be revealed to the former governmental body. The Vthics 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(,) 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 bad where the public official/public emloyee had influence or control but extends to he entire body. See Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-OK Sharp, Opinion 90-009-R. The governmental body with which you would be deemed to have been associated upon termination of Commonwealth employment would be the C in its entirety, including but not limited to the B, Therefore, for the first the following termination of your Commonwealth employment, Section 1103(g) of , e Ethics Act would apply and restrict "representation" of a "person" before the C. You are advised that Section 11103(�) of the Ethics Act would not prohibit you from accepting employment with: (1) F, or ( ) an H that currently does business or has done business with the C, the 1, or other Commonwealth entity(ies). However, 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) t6t would involve prohibited representation before the C as set forth above. With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are genera I advised that the elements of a violation of Section 1103(a) of the Ethics Act woV not be established as a result of your prospectively entering into a business/employment relationship with an entity subject to the conditions that you: (1) did not use the authority Of Your public position in matter(s) pertaining to such entity when you had an actual or reasonable expectation that you would enter into a businesslemployment arrangement with such entity or would otherwise receive a private pecuniary benefit relating to such entity; 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 such entity or other private pecuniary benefit relating to such entity. 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, Specifically not addressed herein is the applicability of the J. Conclusion: As the A for the B in the C, you would be considered a public officialtput employee and an "executive -level State employee" subject to the Public Official and Employee Ethics Act Commission, tEthics Act"), 65 Pa.C.S. § 110 et sag., and the Reguations of the State Ethics 51 Pa. Code § 11.1 et se c 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 Confidential Advice, 19-525 May 31, 2019 Page 6 restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act, 65 Pa.C.S. § 1103(g),1103(i), Under Sedfion1103(i) of the Ethics Act, you would not be prohibitsg 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 f a grant or loan of money from the Commonwealth of Pennsylvania. The governmentalbol with which you would- be deemed to have been associated upon termination o)?your Commonwealth employment would be the C in its entirety, including but not limited -to the B. For the first year following termination of your Commonwealth employment, Section 11 03(g of the Ethics Act would apply and restrict "re resentation" of a "person" before the �. The restrictions as to representation outlined above must be followed. Section 1103( of the Ethics Act would not prohibit you from accepting employment with: (1) V; or (2) an H that currently does business or has done business with the C, the 1, or other Commonwealth entit�(ies). However, during the first year following termination of your Commonwealth employment, Section 11 03(g) of the Ethics Act would prohibit you from performing any job duty(ies) that would involve prohibited representation before the C as set forth above. With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are enera I advised that the elements of a violation of Section 1103(a) of the EtI I would not be established as a result of your prospectively entering into a business/employment relationship with an entity subject to the conditions that you: (1) did not use the authority of your public position in matter(s) pertaining to such entity when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with such entity or would otherwise receive a private pecuniary benefit relating to such entity; and (2) did not otherwise use the authority of your public position or confidential Normation received as a result of being in your public position in furtherance of securing a business/employment arrangement with such entity or other private pecuniary benefit relating to such entity. 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, providers 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 dateof this Advice pursuant to 59 Pa. Code § 73.2(h). The appeal may be Confidential advice, 19- 2 May 312019 Page 7' received at the Commission by handw delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). failure to Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal, Sincerely, 19 w A Robin M. Nlttle Chief Counsel