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HomeMy WebLinkAbout21-510 Hafner 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 24, 2021 21-510 To the Requester: C.J. Hafner, II Chief Counsel Democrat Legal Staff 535 E Main Capitol Harrisburg, PA 17120 Dear Mr. Hafner: This responds to your correspondence dated February 19, 2021, by which you requested an seeking guidance as to the questions summarized below: Issues: 1. 1101 et seq., would impose employment restrictions upon a Member of the Pennsylvania Senate, following his separation from the Pennsylvania Senate? Brief Answer: YES. For the first year following the end of service as a Member of the Pennsylvania Senate, Section 1103(g) of the Ethics Act would restrict 2. Would Section 1103(g) prohibit attendance at a ribbon cutting or other ceremonial event, where members of a former governmental entity may be present? Brief Answer: NO. If the visitation/appearance/participation would be similar to the public visiting a site or a perfunctory ribbon cutting, such activity would not be prohibited by Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). Hafner, 21-510 February 24, 2021 Page 2 Facts: In submitting the request for an advisory from the Commission, the following facts have been provided on behalf of State Senator John Blake: nd Senator Blake was first elected State Senator for the 22 District in November nd 2010. The 22 District is comprised of all of Lackawanna County and parts of Luzerne Economic and Recreational Development Committee from the 2011-2012 Sessions through and including the 2017-2018 Sessions of the General Assembly. Prior to his Senate service, Senator Blake served Governor Rendell as both Acting Secretary and Executive Deputy Secretary for the Department of Community and Northeast Regional Office. His prior experience included serving as Executive Director of the Lackawanna County Redevelopment Authority for over 10 years. District. The 8th Congressional District is comprised of all of Lackawanna, Pike and Wayne counties plus most of Luzerne and Monroe Counties. Congressman Cartwright was recently appointed Chairman of the Commerce, Justice, Science and Related Agencies subcommittee of the U. S. Hou Committee. The Subcommittee oversaw the allocation of approximately $71 billion in spending in the Federal budget for Fiscal Year 2021. As chairman, Congressman Cartwright will play a key role in drafting legislation developed by the Subcommittee. Congressman Cartwright has offered Senator Blake a position as District Director and Economic Development Specialist. responsibility will involve interaction with county and local government officials, non- profits and economic development intermediary organizations (i.e., local Chambers of Commerce, Industrial Resource Centers, Small Business Development Centers, CDFIs, etc.) in order to improve Federal investment in the 8th Congressional District. Senator Blake will also be responsible for supervising District staff and interns, if any. Senator Blake believes his future professional contact with the Pennsylvania Senate, its members or staff, will be limited to attending a ceremony with the Congressman, such as a ground-breaking or ribbon cutting. All his future duties will be Federal. Finally, Senator Blake has committed to not lobbying the Legislative and Executive Branches of the Commonwealth after beginning his employment with Congressman Senator Blake plans to resign his Senate seat effective Friday, March 8, 2021. Hafner, 21-510 February 24, 2021 Page 3 Discussion: 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 initially noted that upon separation from public office as a Member of the Pennsylvania Senate, Senator Blake will becoofficial Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official from accepting a position of employment, it does restrict the former public official with regard to § 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). governmental body with which a public official or public employee is or has been associatedare 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. Hafner, 21-510 February 24, 2021 Page 4 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 himself, Confidential Opinion, 93-005, as well as any 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 ones 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. Shay, Opinion 91-012. A former public official may assist in the preparation of documents presented to his former governmental body; however, the former public official cannot be identified on documents submitted. Furthermore, a former public official may also counsel persons regarding that persons 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. 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. Hafner, 21-510 February 24, 2021 Page 5 Applying the foregoing to the specific facts presented, the governmental body with which Senator Blake is deemed to have been associated upon separation with the Pennsylvania Senate is the Pennsylvania Senate in its entirety. Therefore, for the first year following separation with the Pennsylvania Senate, Section 1103(g) of the Ethics Act Pennsylvania Senate. The submitted facts state that as District Director and Economic Development focused at the Federal level of government, and his contact with state/local entities will be limited to primarily county and local government officials, non-profits and economic development intermediary organizations. Senator Blake does not foresee the likelihood of appearing before the Pennsylvania Senate. It is believed that any professional contact with the Pennsylvania Senate, its members or staff, will be limited to attending ceremonial events with the Congressman, such as a ground-breaking or ribbon cutting. The Commission has previously advised that a former public official could attend meetings/conferences, and functions sponsored/held by his former governmental entity, visitation/appearance/participation would be similar to the public visiting a site or a perfunctory ribbon cutting, such activity would not be prohibited by Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). (See Confidential Advice, 95-635 at pg. 6). 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. Conclusion: As a Member of the Pennsylvania Senate, Senator Blake would be considered a official Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon separation from the Pennsylvania Senate, Mr. Blake would become official governmental body would be the Pennsylvania Senate in its entirety. For the first year following separation from the Pennsylvania Senate, Section 1103(g) of the Ethics Act would apply and restrict his Pennsylvania Senate. During the first year following separation from the Pennsylvania Senate, Mr. Blake may appear and participate in perfunctory events, such as a ribbon cutting, and same would not be prohibited by Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). 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 Hafner, 21-510 February 24, 2021 Page 6 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