HomeMy WebLinkAbout20-522 Confidential
PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
April 3, 2020
To the Requester:
20-522
This responds to your letter dated March 17, 2020, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission .
Issue: Whether the Public Official and Employee Ethics s Act65
Pa.C.S. § 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
post-employment 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 the duties and responsibilities of the A include: \[list of
certain duties and responsibilities\]. You further stated that all D \[type of supervision\] to
the A.
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 the E for a firm named \[name of firm\] (Firm You
further stated that the E is responsible for managing, developing, executing, and
measuring Fs for a variety of Firm clients. You additionally stated that the
responsibilities of the E include, inter alia: \[list of particular duties and responsibilities\].
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 G, and various other officials of the
Commonwealth in the capacity of E for the Firm.
Confidential Advice, 20-522
April 3, 2020
Page 2
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
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.
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
-ct 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 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(i) would not restrict you 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
Confidential Advice, 20-522
April 3, 2020
Page 3
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 ep
before vernmental body with which he has be
§ 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).
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 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 official/public 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 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 governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89-005.
Confidential Advice, 20-522
April 3, 2020
Page 4
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
official/public employee is not restricted as to representation before other agencies or
ublic official/public employee
is or ho 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, 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 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 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 G, or other officials of the Commonwealth in the capacity
of E for the Firm 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
Confidential Advice, 20-522
April 3, 2020
Page 5
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 H.
Conclusion: As the A of the B within the C, you would be considered a public
employee and aexecutive-level State employect to the Public Official and
Employee Ethicet seq., 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(g), 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 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 restincluding but not limited to a
new employerbefore the C.
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
G, or other officials of the Commonwealth in your capacity as E for \[name of firm\] to the
extent that such activity(ies) would involve prohibited representation before the C as set
forth above.
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.
Confidential Advice, 20-522
April 3, 2020
Page 6
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 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 (717-787-0806). 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