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HomeMy WebLinkAbout19-540 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL September 16, 2019 FACSIMILE: 717-787-0806 WEBSITE: www.cth1cs.Pa.aov 19-540 This responds to your letter dated August 14, 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._G_,S. § 1101 et seg., would impose restrictions upon employment of an A for the B following terminalio-n—of Commonwealth employment, Facts: You request a confidential advisory from the Commission on behalf of Inaivi ual C. You have submitted facts that may be fairly summarized as follows. From [month, year] to month, year], Individual C was employed as an A for the B and Public Official D. in her former Commonwealth - osition, Individual C communicated with various Commonwealth Es on behalf of the B, and her specific assignments were the [certain Commonwealth Es]. As of [date), Individual C became the F of G. You state that G will engage in the following H activities: [list of certain activities]. Based upon the above submitted facts, you ask whether the Ethics Act would impose any restrictions upon Individual C with regard to interactions and communications with the Commonwealth and its Es following her departure from Commonwealth employment. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of tie Ethic t, 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 en age in an independent investigation of the facts, nor does it speculate as to facts tha 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 disc used all of the material facts. In the former capacity as an A for the B, Individual C would be considered a public official/public employee and an "executive -level State employee" subject to the Ethics Act and the Repulations of the State Ethics Commission. See, 65 Pa.C.S. 1102; 51 Pa. Code § 1 .1; [cites]. Confidential Advice 19-540 September ftWb Page 2 Consequently, upon termination of Commonwealth employment, Individual C became 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 ba 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 �uestion is a client of a new employer, rather than the new employer itself, See, onfidential Opinion, 94-011. However, Section 1103(i) would not restrict Individu—aT-C from beinc Po ed by, receiving compensation from, assisting, or acting in a , i emplo . -he did not actively representative capacity for a business subject to the conditions that S participate in recruiting such business to Pennsylvania, and that she 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(q) does not prohibit a former public official/public employee from accepting a position of employment. However, it does restrict the former public officl, C � ic 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 represen a erson, with promised or actual compensation, on any matter e ore 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). Confidential Advice 19-540 8 -e—p fe—mFe—r T6,—1 U T b Page 3 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 an � activity which includes, but is not limited to, the following; personal appearances, negotiations, lobbyingand submitting bid or contract proposals which are signed y 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 within State government or a political subdivision by which the public officialor emloyee is or has been employed ed or to which the public officialor 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 a ia, corporations and other businesses. It also includes the former public officiaTIE-ubi 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 an Examples of prohibited representation include: (1) personal , activity. appearances before the former governmental body or bodies; (2) attempts to influence; ( 1) submission of bid or contract proposals which are signed by or contain the name of the former public official/publici employee; (4) participating n any matters before the former overnmental body as to acting on behalf of a person; and (5) lobbying. PopovicW Opinion 89-005. Listing one's name as the person who will provide technical assistance on a ro osal, document, or bid, if submitted to or reviewed by the former governmental oi, constitutes an attempt to influence the former governmental body. Section 110 ( ) 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 K the invoices pertain to a contract that existed prior to termination of service with such governmental body. Sha , Opinion 91-012. However, I Tw if such a re -existing contract does not involve the uni w ere 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 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 Confidential Advice 19-540 September fr, 9Tb Page 4 person regarding that person's appearance before his former governmental body. Once again, however, the activit in his 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 I overnmental body. The former public official/public employeeis 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 controlbut extends to the entire body. See Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion M_-W; Sharp, Opinion 90-0 9-R. The governmental body with which Individual C is deemed to have been associated upon termination of Commonwealth employment, hereinafter collectively referred to as her "former governmental body " consists of the B in its entirety, including but not limited to the Is and the J, as well as any boards, commissions, or other governmental bodies that Individual C served as an employee, appointee/member, or designee except for those whose members are not considered public officials subject to the Ethics Act. Cf., [cites - Therefore, for the first year followintermination of Commonwealth C's Coonweallh employment, Section 1103(g) of the Ethics Act would appl and restrict "representation" of a "person" before her former governmental body as Llineated above. In particular, during the first year following termination of Individual C's Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit Individual C from engaging in interaction(s) or communication(s) that would constitute prohibited representation before her former governmental body as set forth above. 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 11 03(a) of the Ethics Act. Further, you are advised that Sections 11 03(b) and I I 03(c) of the Ethics Act provide in part that no person shall offer or give to a public a"b employee and no public official/public employee shall solicit or accept lo' based upon e understanding a ry value ase 0 t' p ublic employee f the 1w lic m' anythingo ii pufmonetary o ne derstanding that the vote, official action, ff f i c off!r Judgment 0 he public _ia I t u would be influenced thereby.. or is m cle 0 these provisions 0 Reference a t t s s w not to imply that there has been or will be n transgression thereof but merely to provide a complete response to the question presented. y 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 K. Conclusion: In the former capacity as an A for the B, Individual C would be considereEFa public official/public employee and an "executive -level State emplo1101 ee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. �et f1.1 1 0 1 seq., and the Requlations of the State Ethics Commission, 51 Pa. Code § et §gq. Upon termination of her Commonwealth employment, Individual C became —a Confidential Advice, 19-540 September W, �TMTO Page 5 former public official/public employee and a former executive -level State ernkloyee 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, Individual Cwould not be prohibite( from being employed by, receiving compensation from, assisting, or acting n a representative capacity for a business sub ect to the conditions that she did not actively articipate in recruiting such business to �ennsylvania, and that she 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 Individual C is deemed to have been associated upon termination of Commonwealth employment, hereinafter collectively referred to as her "former governmental body " consists of the B in its entirety, including but not limited to the Is and the J, as well as any boards, commissions, or other 5evernmental bodies that Individual C served as an employee, appointee/member, or signee except for those whose members are not considered public officials subject to the Ethics Act. The restrictions as to representation outlined above must be flowed. For the first ear following termination of Individual C's Commonwealth employment, Section 11 03�g) of the Ethics Act would aply and restrict "representation" of a "person" before her former governmental body as delineated above. In particular, during the first year following termination of Individual C's Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit Individual C from engaging in interaction(s) or communication(s) that would constitute prohibited representation� before her former governmental body as set forth above. Lastly, the propriety of the proposed conduct as 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 I 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 writig and must be actuall received at the Commission within thirty (3( ) days of the dati-of this Advice ursuant to 51 Pa. Code § f3.2(h). The appeal may be receivecrat the Commission by hand delivery. United States mail, delivery service, or by FAX transmission (71f-�87-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin tt.. �H i tt i e Chief Counsel