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Home My WebLink About21-519 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 April 21, 2021 21-519 To the Requester: This responds to your correspondence dated \[REDACTED\], by which you requested an on behalf of \[PUBLIC EMPLOYEE\], seeking guidance as to the questions summarized below: Issues: 1. et seq., would impose restrictions upon the \[PUBLIC EMPLOYEE\] as the \[DIRECTOR\] of the \[PROGRAM\], following her employment separation from the \[CITY\]? Brief Answer: YES. For the first year following the end of service as the \[DIRECTOR\] of the \[PROGRAM\], Section 1103(g) of the Ethics Act would restrict ability to the \[MANAGER\] and/or any subordinate office reporting to the \[OFFICE\] of the \[CITY\], including but not limited to the \[PROGRAM\]. 2. Could \[PUBLIC EMPLOYEE\] represent the \[ENTITY\] before her former governmental entity, when no compensation would be provided to her? 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 for reasonable and necessary actual expenses. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) Confidential Advice, 21-519 April21, 2021 Page 2 Facts: In submitting the request for an advisory from the Commission, a brief factual basis was provided which is summarized as follows: \[PUBLIC EMPLOYEE\] currently serves as the \[DIRECTOR\] of the \[PROGRAM\]. In \[REDACTED\], \[PUBLIC EMPLOYEE\] founded \[PROGRAM-A\]. As the \[DIRECTOR\], \[PUBLIC EMPLOYEE\] is responsible for setting \[PROGRAM\] strategy and vision, as well as planning, developing, and establishing policies and objectives in conjunction with the \[CITY\]. Additionally, the \[DIRECTOR\] is responsible for the operational and financial success of \[PROGRAM\]. The \[DIRECTOR\] leads a senior team of executives in creating, executing, monitoring and evaluating the strategies and tactics needed to generate the long-range success of \[PROGRAM\]. The \[DIRECTOR\] also develops, implements and evaluates sustainable, multi-source revenue building initiatives and actively represents \[PROGRAM\] to perspective funders, donors, partners, contractors and regulators. As \[DIRECTOR\], \[PUBLIC EMPLOYEE\] reports to the \[MANAGER\], who in turn reports to the \[OFFICE\] of the \[CITY\]. The \[OFFICE\] reports directly to the \[MAYOR\]. \[PUBLIC EMPLOYEE\] was also instrumental in the establishment of the \[ENTITY\], a nonprofit 501(c)(3) corporation organized to raise funds and provide other support to \[PROGRAM\]. Founded in \[REDACTED\], the \[ENTITY\] is governed by a volunteer Board of Directors. \[PUBLIC EMPLOYEE\] seeks guidance as to the applicability of Section 1103(g) (65 Pa.C.S. §1103(g)) should \[PUBLIC EMPLOYEE\] choose to serve as the Executive Director of \[ENTITY\] following the termination of her employment with the \[CITY\] on \[DATE REDACTED\]. You have stated that for the one-year period following \[PUBLIC EMPLOYEE\] termination of employment with the \[CITY\], she will not be paid any compensation by \[ENTITY\]. While it is expected that \[PUBLIC EMPLOYEE\] will be reimbursed for actual ordinary and necessary business expenses that she incurs on behalf of \[ENTITY\], she will not be given an expense allowance. 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 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 the material facts. Confidential Advice, 21-519 April21, 2021 Page 3 It is initially noted that upon separation from public employment as the \[DIRECTOR\] of the \[PROGRAM\], \[PUBLIC EMPLOYEE\] will be a employee 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 § 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. 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/employee himself/herself, Confidential Opinion, 93-005, as well as any new governmental employer. Ledebur, Opinion 95-007. Confidential Advice, 21-519 April21, 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/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/employee may assist in the preparation of documents presented to his/her former governmental body; however, the former public official/employee cannot be identified on documents submitted. Furthermore, a former public official/employee may also counsel persons regarding that persons appearance before his/her former governmental body. Once again, however, the former public official/employeeactivity 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/employee with regard to representation before his/her former governmental body. The former public official/employee is particular subdivision of the agency or other governmental body where the public official/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 \[PUBLIC EMPLOYEE\] is deemed to have been associated upon separation with \[PROGRAM\] is the \[MANAGER\] and/or any subordinate office reporting to the \[OFFICE\] of the \[CITY\], including but not limited to the \[PROGRAM\]. (See \[CITATION REDACTED\]). Therefore, for the first year following separation, Section 1103(g) of the Ethics Act would apply and restrict \[OFFICE\] and any subordinate offices reporting to the \[OFFICE\]. The submitted facts do not specify the duties that \[PUBLIC EMPLOYEE\] would be undertaking as \[AN EMPLOYEE\] of \[ENTITY\]; however, given the mission statement of \[ENTITY\] and the fact that an advisory has been requested, it is presumed that \[PUBLIC EMPLOYEE\] would be appearing before officials, employees and/or representatives of the \[MANAGER\] and/or any subordinate office reporting to the \[OFFICE\] of the \[CITY\], including but not limited to the \[PROGRAM\]. The term in any activity, including personal appearances and participating in matters before the former governmental body. Confidential Advice, 21-519 April21, 2021 Page 5 However, it has been submitted that \[PUBLIC EMPLOYEE\] would decline or otherwise not receive any compensation from \[ENTITY\] for the first year of her service. Section 1103(g) of the Ethics Act does not apply to restrict a former public official/employee when the representation does not involve promised or actual compensation or when payment to the former public official/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 \[PUBLIC EMPLOYEE\] from seeking employment and representing \[ENTITY\] before \[MANAGER\] and/or any subordinate office reporting to the \[OFFICE\] of the \[CITY\], including but not limited to the \[PROGRAM\], provided she would not accept any compensation from \[ENTITY\], including any payment intended to compensate, reward, etc. her for her employment/service to \[ENTITY\] prior to \[DATE REDACTED\]. 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 \[DIRECTOR\] of the \[PROGRAM\], \[PUBLIC EMPLOYEE\] would be considered a employee 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 \[PROGRAM\]/\[CITY\], \[PUBLIC EMPLOYEE\] would be considered employee governmental body would be \[MANAGER\] and/or any subordinate office reporting to the \[OFFICE\] of the \[CITY\], including but not limited to the \[PROGRAM\]. For the first year following separation from the \[PROGRAM\]/\[CITY\], Section 1103(g) of the Ethics Act would apply and restrict \[PUBLIC EMPLOYEE\]. 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 \[PUBLIC EMPLOYEE\] from seeking employment and representing \[ENTITY\] before \[MANAGER\] and/or any subordinate office reporting to the \[OFFICE\] of the \[CITY\], including but not limited to the \[PROGRAM\], provided she would not accept any compensation from \[ENTITY\], including any payment intended to compensate, reward, etc. her for her employment/service to \[ENTITY\] prior to \[DATE REDACTED\]. 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. Confidential Advice, 21-519 April21, 2021 Page 6 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. Respectfully, Brian D. Jacisin Chief Counsel