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HomeMy WebLinkAbout21-508 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 24, 2021 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 21-508 This responds to your correspondence dated January 18, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission") seeking guidance as to the questions summarized below: Issues: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., would impose employment restrictions upon a [Former Public Official/Public Employee], following his/her separation from the [Governmental Entity]? Brief Answer. YES. For the first year following the end of service as a [Former Public Official/Public Employee], Section 1103(g) of the Ethics Act would restrict one's ability to "represent" any "person" before the [Governmental Entity]. 2. Could you serve as a host/emcee of a program before your former governmental entity, when no compensation would be provided to you? Brief Answer. YES. Section 1103(g) of the Ethics Act does not apply to restrict a former public employee when the representation does not involve promised or actual compensation or when payment to the former public employee is limited to reimbursement only for reasonable and necessary actual expenses. Facts: In submitting the request for an advisory from the Commission, you have provided a factual recitation which is summarized as follows: Confidential Advice, 21-508 February 24, 2021 Page 2 You served as a [Former Public Official/Public Employee] of [Governmental Entity] from [Date] until [Date 2]. During your service, you had presented on several occasions to a group of candidates and newly elected [Public Officials/Public Employees] at a program hosted by the [Entity]. The program is entitled [REDACTED] and was hosted by [Person] as an educational forum for the attendees. The topics vary and include [REDACTED TOPICS]. Subject matter experts from various fields were asked to present and make themselves available to answer questions after presenting. The program generally occurs [multiple times a year] for one morning with the first session being in the morning and lasting through lunch into the afternoon. During the extra time at the meeting, attendees have an opportunity to introduce themselves and discuss the path that led them to public service. [Person] wished to step away from the program [REDACTED]. [Person] contacted you and indicated that he spoke to [Entity] and wondered if you would assist in continuing the program. Hosting the program involves coordinating the presenters, setting the schedule, inviting the candidates and elected officials, and acting as the emcee during the session. [Person] receives some compensation to cover his/her time and expenses. You will not receive any compensation to help facilitate the program for the first year of your service but would expect a similar compensation arrangement as the previous facilitator received, if the program continues into 2022 and beyond. There is no offer of contributions or incentives received by the attendees; however, a lunch or breakfast is always available. The program is held in the conference room of the [Entity]. 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 [Public Official/Public Employee] of [Governmental Entity], you became a "former public official' subject to Section 1103(g) of the Ethics Act. Confidential Advice, 21-508 February 24, 2021 Page 3 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 "representing" a "person" before "the governmental body with which he has been associated": § 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 terms "represent," "person," and "governmental body with which a public 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 himself, Confidential Opinion, 93-005, as well as any new governmental employer. Ledebur, Opinion 95-007. Confidential Advice, 21-508 February 24, 2021 Page 4 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. Shay, Opinion 91-012. A former public official may assist in the preparation of documents presented to his/her 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 person's appearance before his/her former governmental body. Once again, however, the former public official's 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/her former governmental body. The former public official/public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official/public employee is or has been associated" is not limited to 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. Applying the foregoing to the specific facts presented, the governmental body with which you are deemed to have been associated upon separation with the [Governmental Entity] is the [Governmental Entity] in its entirety. Therefore, for the first year following separation with the [Governmental Entity], Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the [Governmental Entity]. The submitted facts state that your duties in hosting the program would involve coordinating the presenters, setting the schedule, inviting the candidates and elected officials, and acting as the emcee during the session. In as much as the term "represent" prohibits acting on behalf of any person in any activity, including personal appearances and participating in matters before the former governmental body, it is believed that by hosting/emceeing the [REDACTED] event you would be representing the [Entity] and/or yourself before your former governmental body, [Governmental Entity]. Confidential Advice, 21-508 February 24, 2021 Page 5 However, you have stated that you would decline and not receive any compensation to help facilitate the program for the first year of your service. Section 1103(g) of the Ethics Act does not apply to restrict a former public employee when the representation does not involve promised or actual compensation or when payment to the former public employee is limited to reimbursement only for reasonable and necessary actual expenses. Cf., Confidential Opinion, 07-012; Moore, Opinion 04-004; Confidential Opinion, 97-012; Antico, Order 1061. Based upon the above, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from hosting/serving as emcee for the [REDACTED] program where you would not accept any compensation for serving/performing duties for the time period prior to [Date 3]. 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 [Public Official/Public Employee] of the [Governmental Entity], you would be considered a "public official' subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 etseq. Upon separation from the [Governmental Entity], you are considered a "former public official" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the [Governmental Entity] in its entirety. For the first year following separation from the [Governmental Entity], Section 1103(g) of the Ethics Act would apply and restrict your "representation" of a "person" before the [Governmental Entity]. Section 1103(g) of the Ethics Act does not restrict a former public employee when the representation does not involve promised or actual compensation or payment of reimbursement for reasonable and necessary actual expenses. As such, Section 1103(g) of the Ethics Act would not prohibit you from hosting/serving as emcee for the [REDACTED] program where you would not accept any compensation for serving/performing duties for the time period prior to [Date 3]. 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. 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, 21-508 February 24, 2021 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, Brian D. Jacisin Chief Counsel