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HomeMy WebLinkAbout20-505 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 February 19, 2020 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pajov This responds to your letter dated December 20, 2019, by which you requested confidential advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 75-7S. § 1101 et seq., would impose restrictions upon employment of the A of the B within the C following termination of Commonwealth employment. Facts: You request a confidential advisory from the Commission regarding the pow mployment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. At the time that you submitted your inquiry, you were employed as the A of the B within the C. You stated that your primary responsibility was to connect the D, which includes various Es, to Harrisburg, Pennsylvania. Your duties included [engaging in certain activities]. You stated that effective at the close of business on date , you would be resigning from your Commonwealth employment. You stated that on date], you would be commencing employment as F to the G of a corporation named [name of corporation] (the "Corporation"). You further stated that in your position with the Corporation, you will be working on Hs at the Corporation's headquarters in [geographic location]. The Hs will vary and could include [performing certain activities]. You state that you might have interaction with Commonwealth agencies, including I and J. 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 ask whether the Ethics Act would impose any restrictions upon you with regard to communicating with the C, the K, and various other officials of the Commonwealth in the capacity of F to the G of the Corporation. Discussion: It is initiallynoted that pursuant to Sections 1107(10) and 1107(11) of th 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 Confidential Advice, 20-505 February Page 2 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As the A of the B within the C, you would be considered a "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 employment as the A of the B within the C, you would become a "former 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 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 to 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 �m Bing emp aye y, receivinq 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": Confidential Advice, 20-505 February Page 3 § 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 bodywith 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 officiator 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 off iciaVpub ifc employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95- 0 . 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 officiallpublic employee; (4) participating in any matters before the former ggovernmental 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 bodyy, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a farmer ublic official/public employee on invoices submitted by his new employer to the farmer governmental body, even if the invoices pertain to a contract that existed prior to Confidential Advice, 20-505 February Page 4 termination of service with such governmental body. Shama , 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. AbramslWebster, 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 1103O 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 control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, pinion 90-009- . The governmental bodywith which you would be deemed to have been associated upon termination of our Commonwealth employment would be the C in its entirety, including but not limited to the B. 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 the C. 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 communicating with the C, the K, or other o icials of the Commonwealth in the capacity of F to the G of the Corporation to the extent that such activity(ies) would involve prohibited representation before the C 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 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 L. Confidential Advice, 20-505 February Page 5 Conclusion: As the A of the B within the C, You would be considered a "public employee" and an "executive -level State empplo ee' subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sseeq , and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your employment as the A of the B within the C, you would become a "former 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( ), 1103(i). Under Section 1103(i) of the Ethics Act, you would not be prohibited rom 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 employment as the A of the B within the C 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 1103(g) of the Ethics Act would apply and restrict "representation' of a "person" —including but not limited to a new employer —before the C. 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 Opin►on 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 this Advice pursuant to 59 Pa. Code § 13.2(h), The appeal may be received at the Commission by hand. delivery, United States marl, 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, �A4 Robin M. Hittie Chief Counsel