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HomeMy WebLinkAbout21-523 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 May 6, 2021 To the Requester: 21-523 This responds to your letter received April 13, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you with regard to performing work for a \[TYPE OF FIRM\] following termination of your employment as a \[POSITION\] with the \[COMMONWEALTH ENTITY\]? Brief Answer: YES. During the first year following termination of your employment with the \[COMMONWEALTH ENTITY\], Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve including but not limited to a new employer, such as a \[TYPE OF FIRM\] before the \[COMMONWEALTH ENTITY\]. Facts: You request an 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 a \[POSITION\] with the \[COMMONWEALTH ENTITY\] in \[UNIT A\]. You have submitted a copy of your official Confidential Advice, 21-523 May 6, 2021 Page 2 Commonwealth position description, which is incorporated herein by reference. A copy of the job classification specifications for the position of \[POSITION\] (job code \[NUMBER\]) has been obtained and is also incorporated herein by reference. You stated that you would be retiring from your Commonwealth employment effective \[DATE\], and that you would begin working for a \[TYPE OF FIRM\] (the Firm) approximately one month later. The Firm has existing contracts and will have future contracts with various Commonwealth agencies. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment with the \[COMMONWEALTH ENTITY\]. In particular, you pose the following questions: 1. Whether you would be permitted to work on contracts that the Firm has with a Commonwealth agency, and whether your name could appear on routine invoices if your work did not involve \[UNIT A\] and the contracts were executed prior to your retirement from the Commonwealth; 2. Whether you would be permitted to assist in the preparation of documents presented to a Commonwealth agency as long as your name would not appear on the documents; 3. Whether you would be permitted to counsel appearance before a Commonwealth agency as long as you would not reveal such counseling to that Commonwealth agency; and 4. Whether you would be permitted to make general informational inquires to a Commonwealth agency to secure information that is available to the general public as long as your inquiry would not be done in an effort to directly influence your former governmental entity or to otherwise make known to that entity your representation of, or your work for, the Firm. 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. As a \[POSITION\] for the \[COMMONWEALTH ENTITY\], you would be considered a See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate Confidential Advice, 21-523 May 6, 2021 Page 3 clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of your employment with the \[COMMONWEALTH ENTITY\], 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 employee § 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 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. Confidential Advice, 21-523 May 6, 2021 Page 4 The term Person is very broadly defined. It includes, 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. 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. 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 person 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 he 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. The governmental body with which you would be deemed to have been associated upon termination of your employment with the \[COMMONWEALTH ENTITY\] would be the \[COMMONWEALTH ENTITY\] in its entirety, including but not limited to \[UNIT A\]. Therefore, for the first year following termination of your employment with the \[COMMONWEALTH ENTITY\] Confidential Advice, 21-523 May 6, 2021 Page 5 including but not limited to a new employer, such as the Firmbefore the \[COMMONWEALTH ENTITY\]. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm. However, during the first year following termination of your employment with the \[COMMONWEALTH ENTITY\], Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would involve representation of the Firm before the \[COMMONWEALTH ENTITY\]. Turning to your specific questions, you are advised as follows. The restrictions of Section 1103(g) of the Ethics Act outlined above would apply where your activity would involve your former governmental body, the \[COMMONWEALTH ENTITY\], and would not apply where your activity would involve a Commonwealth agency other than the \[COMMONWEALTH ENTITY\]. Accordingly, your questions shall be addressed to the extent that they relate to activity that would involve the \[COMMONWEALTH ENTITY\]. In response to your first question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from working on contracts that the Firm has with the \[COMMONWEALTH ENTITY\] subject to the condition that in so doing, you would not engage in prohibited representation before the \[COMMONWEALTH ENTITY\] as set forth above. You are further advised that 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 the \[COMMONWEALTH ENTITY\]. However, if you perform work on \[COMMONWEALTH ENTITY\] contracts that existed before you terminated your employment with the \[COMMONWEALTH ENTITY\]the \[COMMONWEALTH ENTITY\] where you worked, specifically \[UNIT A\], your name can appear on routine invoices submitted to the \[COMMONWEALTH ENTITY\] as to those pre- existing contracts if required by the regulations of the \[COMMONWEALTH ENTITY\]. With respect to your remaining three questions, you are advised that the restrictions of Section 1103(g) outlined above must be followed with respect to: (1) the preparation of documents that would be submitted to the \[COMMONWEALTH ENTITY\]; (2) counseling a person as to that before the \[COMMONWEALTH ENTITY\]; and (3) making general informational inquiries to the \[COMMONWEALTH ENTITY\]. 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 \[POSITION\] for the \[COMMONWEALTH ENTITY\], you would be considered a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your employment with the \[COMMONWEALTH ENTITY\], you would Confidential Advice, 21-523 May 6, 2021 Page 6 become a former public employee subject to Section 1103(g) of the Ethics Act. The former governmental body would be the \[COMMONWEALTH ENTITY\] in its entirety, including but not limited to \[UNIT A\]. For the first year following termination of your employment with the \[COMMONWEALTH ENTITY\], Section 1103(g) of the Ethics Act would apply and restrict including but not limited to a new employer, such as a \[TYPE OF FIRM\]before the \[COMMONWEALTH ENTITY\]. The restrictions as to representation outlined above must be followed. 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. Respectfully, Brian D. Jacisin Chief Counsel