HomeMy WebLinkAbout20-554-CL 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
February 5, 2021
To the Requester:
20-554-CL
This responds to your letter dated January 5, 2021, by which you requested
clarification of Confidential Advice 20-554.
Issue:
Does Section 1103(g) of the Public Official and Employee Ethics Act
65 Pa.C.S. § 1103(g), impose prohibitions or restrictions upon you, as a former A
with Commonwealth Agency B in Unit C, with regard to your name appearing on
routine invoices submitted to Commonwealth Agency B for work that you perform
on pre-existing contracts that your new employer has with Commonwealth Agency
B, where such contracts involve Unit D?
Brief Answer: NO. In Abrams/Webster, Opinion 95-011, the Pennsylvania State
Ethics Commission held that if a pre-existing contract does not
involve the unit where the former public employee worked, the name of the former
public employee may appear on routine invoices submitted to his former
governmental body if required by the regulations of the agency.
Facts:
By letter dated November 19, 2020, you initially requested a confidential advisory
from the Commission regarding the post-employment restrictions of Section 1103(g) of
the Ethics Act. In response to your initial advisory request, Confidential Advice 20-554
was issued to you on December 17, 2020.
By letter dated January 5, 2021, you requested clarification as to whether, pursuant
Abrams/Webster, supra, your name can appear on routine
invoices submitted to Commonwealth Agency B for work that you perform on three
particular pre-existing contracts that your new employer has with Commonwealth Agency
B which involve Unit D.
Confidential Advice, 20-554
February 5, 2021
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.
The recitation of the Section 1103(g) restrictions set forth in Confidential Advice
20-554 is incorporated herein by reference.
In response to your request for clarification of Confidential Advice 20-554, you are
advised as follows.
As noted in Confidential Advice 20-554, Section 1103(g) of the Ethics Act 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, supra.
Abrams/Webster, the
worked was Unit C. During the one-year
period of applicability of Section 1103(g) of the Ethics Act, as a general rule, your name
cannot be listed on invoices submitted to Commonwealth Agency B. However, if you
perform work on Commonwealth Agency B contracts that existed before you terminated
your employment with Commonwealth Agency B, and if such contracts do not involve the
Unit C, but rather
involve another unit of Commonwealth Agency B such as Unit D, your name can appear
on routine invoices submitted to Commonwealth Agency B as to those pre-existing
contracts if required by the regulations of Commonwealth Agency B.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
As a former A with Commonwealth Agency B in Unit C, you are provided with the
following clarification as to Confidential Advice 20-544.
Confidential Advice, 20-554
February 5, 2021
Page 3
Abrams/Webster, the
-year
period of applicability of Section 1103(g) of the Ethics Act, as a general rule, your name
cannot be listed on invoices submitted to Commonwealth Agency B. However, if you
perform work on Commonwealth Agency B contracts that existed before you terminated
your employment with Commonwealth Agency B, and if such contracts do not involve the
lth Agency B where you worked, specifically Unit C, but rather
involve another unit of Commonwealth Agency B such as Unit D, your name can appear
on routine invoices submitted to Commonwealth Agency B as to those pre-existing
contracts if required by the regulations of Commonwealth Agency B. 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.
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,
Brian D. Jacisin
Chief Counsel