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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 11, 2020
To the Requester:
20-549
This responds to your letter dated October 23, 2020 (postmarked October 24,
2020, received November 2, 2020), by which you requested a confidential advisory from
Issue: Whether, as an A for a B of the C
65
Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code
§ 11.1 et seq., such that upon termination of your Commonwealth employment, the
restrictions of Section 1103(g) of the Ethics Act would be applicable to you.
Facts: You request a confidential advisory from the Commission based upon
submitted facts that may be fairly summarized as follows.
At the time that you submitted your inquiry, you were employed as an A for a B of
the C, namely Public Official D. You have submitted a copy of the Job Specifications for
the position of A, which document is incorporated herein by reference.
Per the submitted Job Specifications, your duties and responsibilities included the
following: \[list of certain duties and responsibilities\]. Job Specifications, at 1.
You asserted that you had little or no responsibility for taking or recommending
official action of a non-
Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102. You stated
that the E where you worked does not contract and that any procurement would be for
minimally valued and necessary \[type of items\]. You stated that you \[performed a certain
function\] and that you did not administer, monitor, or determine the outcome of any grants
or subsidies. You further stated that the E has no authority with respect to planning or
zoning or inspecting, licensing, regulating or auditing any person.
You stated that any contact you had with staff within the F or the G was limited to
providing or obtaining information on behalf of Hs to assist them with issues or problems
they had which needed to be addressed or rectified. You further stated that any
interaction you had with Bs of the C other than Public Official D was limited to obtaining,
gathering, or providing information for individuals and/or joint Hs.
You stated that Public Official D would be retiring at \[a certain time\] and that as a
result of his retirement, you would be separating from your Commonwealth employment
Confidential Advice, 20-549
December 11, 2020
Page 2
on or about \[date\]. You stated that following termination of your Commonwealth
employment, you would begin employment in a position with the I. You stated that in the
aforesaid position, you will serve as a J for \[number\] Ks, including Pennsylvania.
You stated that any contact you would need to have with a B or staff of the C in
your position with the I would be for the limited purpose of L in order to M. You further
stated that such contact would generally occur via email, letter, and telephone with
minimal contact occurring in person. You additionally stated that while N may be supplied
for any Os, appearances at Os to provide P would not take place.
Based upon the above submitted facts, you seek guidance as to whether, as an A
for Public Official D
in the Ethics Act, such that upon termination of your Commonwealth employment, you
would be subject to the post-employment restrictions of Section 1103(g) of the Ethics Act.
In particular, you ask whether you would be prohibited from interacting with Bs and staff
of the C for a period of one year following termination of your Commonwealth
employment.
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.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe":
Confidential Advice, 20-549
December 11, 2020
Page 3
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or stop
recommendations from being sent to the person or body with
the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(I) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary-treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
Confidential Advice, 20-549
December 11, 2020
Page 4
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of executive,
legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Ministerial action." An action that a person performs
in a prescribed manner in obedience to the mandate of legal
judgment as to the desirability of the action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of the
action taken.
65 Pa.C.S. § 1102.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics
the position itself.
Typically, the powers and duties of the position are established by objective sources that
define the position, such as the job description, job classification specifications, and
organizational chart. The objective test considers what an individual has the authority to
do in a given position based upon these objective sources, rather than the variable
functions that the individual may actually perform in the position. See, Phillips v. State
Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold,
Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has
has directed
that coverage under the Ethics Act be construed broadly and that exclusions under the
Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d
974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January
5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra.
The first portion of the statut
with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S.
§ 1102. Likewise, the regulatory criteria for determining status as a public employee, as
set forth in 51
Confidential Advice, 20-549
December 11, 2020
Page 5
authority to make final decisions but also individuals with authority to forward or stop
recommendations from being sent to final decision-makers; individuals who prepare or
supervise the preparation of final recommendations; individuals who make final technical
recommendations; and individuals whose recommendations are an inherent and
recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-005.
In applying the objective test in the instant matter, the necessary conclusion is that
in your capacity as an A for Public Official D, you would be considered a
subject to the Ethics Act and the Regulations of the State Ethics Commission. Cf., \[cite\].
It is clear that as an A for Public Official D, you had the ability to take or recommend
official action of a nonministerial nature with respect to subparagraph (5) within the
Act, 65 Pa.C.S. § 1102.
Specifically, the following duties and authority set forth in the Job Specifications would be
: \[list of
particular duties and responsibilities\].
The foregoing duties/authority would also meet the criteria for determining status
as a public employee under the Regulations of the State Ethics Commission, specifically
Consequently, upon termination of your Commonwealth employment, you would
become 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
whic
§ 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).
y 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
Confidential Advice, 20-549
December 11, 2020
Page 6
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.
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.
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.
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
mer 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.
However,
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.
Therefore, for the first year following termination of your Commonwealth employment,
including but not limited to the Ibefore the C.
Confidential Advice, 20-549
December 11, 2020
Page 7
During the one-year period of applicability of Section 1103(g) of the Ethics Act, you
would be prohibited from interacting with B(s) or staff of the C in any manner that would
your new employer, the I. Such prohibited interaction would
include, but would not be limited to, having contact with B(s) or staff of the Cwhether
by email, letter, telephone, or in personfor the purpose of L in order to M.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) 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.
Conclusion: As an A for a B of the C, namely Public Official D, you would be
considered a "public employee" subject to the Public Official and Employee Ethics Act
et seq., and the Regulations of the State Ethics
Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your Commonwealth
employment, you would become a "former public employee" subject to Section 1103(g)
of the Ethics Act. 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. For the first year following termination of your Commonwealth employment,
including but not limited to your new employer, the Ibefore the C. The restrictions as
to representation outlined above must be followed.
During the one-year period of applicability of Section 1103(g) of the Ethics Act, you
would be prohibited from interacting with B(s) or staff of the C in any manner that would
I. Such prohibited interaction would
include, but would not be limited to, having contact with B(s) or staff of the Cwhether
by email, letter, telephone, or in personfor the purpose of L in order to M. Lastly, the
propriety of the above 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.
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
Confidential Advice, 20-549
December 11, 2020
Page 8
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