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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
December 7, 2020
To the Requester:
20-545
This responds to your emails received October 19, 2020, and November 23, 2020,
by which you requested a confidential advisory from the Pennsylvania State Ethics
Commission .
Issue: Whether, for purposes of applying the post-termination restrictions of
Section 1103(g) of
§ 1103(g), the governmental body with which a certain former A for the Political
Subdivision B C (the would be deemed to have been associated would be limited to
the C or would extend beyond the C to include additional Political Subdivision B \[types of
governmental bodies\], if the former position in question did not include employment by or
appointment to any such governmental bodies outside of the C itself.
Facts: You have been authorized by Individual D to request a confidential advisory
from the Commission on her behalf. You have submitted facts that may be fairly
summarized as follows.
Individual D was previously employed as A for the C. You have submitted a copy
the C, which
document is incorporated herein by reference.
It is noted that the Position Description lists the C as the department in which
Individual D worked. The Position Description further provides, in pertinent part:
\[summary of duties and functions\]. Position Description, at 1.
It is noted that there is no indication in the Position Description or other submitted
facts that Individual cluded employment by or
appointment to any governmental body(ies) other than the C itself.
On \[date\], Individual D began employment as the E for Entity F.
Based upon the above submitted facts, you ask whether, for purposes of applying
the post-termination restrictions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. §
1103(g), the governmental body with which Individual D as former A for the C would be
deemed to have been associated would be limited to the C itself or would extend beyond
the C to include additional Political Subdivision B \[types of governmental bodies\].
Confidential Advice, 20-545
December 7, 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.
In the former capacity as A for the C, Individual D
s of the State Ethics Commission.
See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the Position
Description, which when reviewed on an objective basis, indicates clearly that the power
exists to take or recommend official action of a non-ministerial nature with respect to one
or more of the following: contracting; procurement; administering or monitoring grants or
subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other
activity(ies) where the economic impact is greater than de minimis on the interests of
another person.
Consequently, upon termination of employment with the C, Individual D became a
"former public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public official/public
which he has been associa
§ 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 following terms relevant to your question are 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." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or other
establishment in the executive, legislative or judicial branch of
Confidential Advice, 20-545
December 7, 2020
Page 3
a state, a nation or a political subdivision thereof or any
agency performing a governmental function.
"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 (Emphasis added).
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.
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 entities.
official/public employee is or has
governmental body where the public official/public employee had influence or control but
Confidential Advice, 20-545
December 7, 2020
Page 4
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.
Based upon the submitted facts, the governmental body with which Individual D is
deemed to have been associated upon termination of employment as A with the C is the
C in its entirety, including the G and all other subdivisions and offices within the C, and
does not extend beyond the C subject to the condition that such former position did not
include employment by or appointment to any governmental body(ies) other than the C
itself. Cf., Confidential Opinion, 01-006. For the first year following termination of
the C, Section 1103(g) of the Ethics Act would apply and
including but not limited to her new employer,
Entity Fbefore the C.
Based upon the facts that have been submitted, this Advice has addressed only
the single question posed as to Section 1103(g) of the Ethics Act. 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 question posed 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: In the former capacity as A for the Political Subdivision B C ,
Individual D
et seq., and the Regulations of the
State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of employment
with the C, Individual D beca
the Ethics Act, 65 Pa.C.S. § 1103(g). Based upon the submitted facts, the governmental
body with which Individual D is deemed to have been associated upon termination of
employment as A with the C is the C in its entirety, including the G and all other
subdivisions and offices within the C, and does not extend beyond the C subject to the
condition that such former position did not include employment by or appointment to any
governmental body(ies) other than the C itself. For the first year following termination of
the C, Section 1103(g) of the Ethics Act would apply and
including but not limited to her new employer,
Entity Fbefore 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.
Confidential Advice, 20-545
December 7, 2020
Page 5
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 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