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To the Requester:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
May 10, 2021
21-524
This responds to your letter received [REDACTED], by which you requested an advisory
from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues
presented below:
Issues:
1. As the [POSITION] for the [OFFICE 1], [OFFICE 2], what constitutes your
"Governmental body with which a public official or public employee is or has been
associated" for purposes of applying Section 1103(g) of the Public Official and Employee
Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(g)?
Brief Answer: As the [POSITION] for the [OFFICE 1], [OFFICE 2], your former
Governmental Body is the [OFFICE 11 in its entirety, including, but not limited to
[OFFICE 21. See [REDACTED].
2. As the Formal Designee of [PUBLIC OFFICIAL], to the [STATE BOARD], what
constitutes your "Governmental body with which a public official or public employee is or
has been associated" for purposes of applying Section 1103(g) of the Public Official and
Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1103(g)?
Brief Answer: As a Formal Designee to the [STATE BOARD], your former Governmental
Body is the [STATE BOARD]. See [REDACTED].
3. Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et
seq., would impose restrictions upon you following termination of your employment as the
[POSITION] for the [OFFICE 1 ], [OFFICE 2] and/or as a Formal Designee to the [STATE
BOARD]?
Confidential Advice, 21-524
May 10, 2021
Page 2
Brief Answer: YES. Following termination of your employment/service with the
Commonwealth of Pennsylvania, you would become a former executive -level State
employee and former public official subject to the restrictions of Section 1103(g) and
Section 1103(i) of the Ethics Act, 65 Pa.C.S. §§ 1103(g), 1103(i).
Facts:
You currently serve as the [POSITION] for the [OFFICE 1], [OFFICE 2]. As the
[POSITION], you report to the [POSITION REDACTED]. Your position as [POSITION] is an
executive [POSITION]. You have submitted a copy of your official Commonwealth position
description and Organizational Chart which are incorporated herein by reference.
In addition to the foregoing, you also serve as the Formal Designee of [PUBLIC
OFFICIAL], to the [STATE BOARD].
You stated that you are contemplating leaving your Commonwealth employment and seek
guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during
the first year following termination of your Commonwealth service/employment.
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 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 material facts.
As [POSITION] for the [OFFICE 1], [OFFICE 2], you are considered a "public employee"
and an "executive -level State employee." As the Formal Designee to the [STATE BOARD], you
are a "public official." As a "public official/public employee" and as an "executive -level State
employee" you are subject to the Ethics Act and the Regulations of the Pennsylvania State Ethics
Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Upon termination of Commonwealth
employment/service, you would become a former public official/employee and former executive -
level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics
Act.
Section 1103(i) restricts former executive -level State employees as follows:
§ 1103. Restricted activities
(i) Former executive -level employee. --
No former executive -level State employee may for a period of two years from the
time that he terminates employment with this Commonwealth be employed by,
receive compensation from, assist or act in a representative capacity for a business
Confidential Advice, 21-524
May 10, 2021
Page 3
or corporation that he actively participated in recruiting to this Commonwealth or
that he actively participated in inducing to open a new plant, facility or branch in
this Commonwealth or that he actively participated in inducing to expand an
existent plant or facility within this Commonwealth, provided that the above
prohibition shall be invoked only when the recruitment or inducement is
accomplished by a grant or loan of money or a promise of a grant or loan of money
from the Commonwealth to the business or corporation recruited or induced to
expand.
65 Pa.C.S. § 1103(i).
Section 1103(i) restricts the ability of a former executive -level State employee to accept
employment or otherwise engage in business relationships following termination of State service,
under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business
relationship is indirect, such as where the business in question is a client of a new employer, rather
than the new employer itself. See, Confidential Opinion, 94-011. However, Section 1103(i) would
not restrict you from being employed by, receiving compensation from, assisting, or acting in a
representative capacity for a business subject to the conditions that you did not actively participate
in recruiting such business to Pennsylvania, and that you did not actively participate in inducing
such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or
loan of money or a promise of a grant or loan of money from the Commonwealth.
Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official/public
employee from accepting a position of employment. However, it does restrict the former public
official/public employee 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
Confidential Advice, 21-524
May 10, 2021
Page 4
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/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
aM 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. 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 person's 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
Confidential Advice, 21-524
May 10, 2021
Page 5
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. 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; Shart�, Opinion 90-009-R.
Conclusion:
As the [POSITION] for the [OFFICE 1], [OFFICE 2], you are considered an "executive -
level State employee" subject to the Ethics Act and the Regulations of the State Ethics
Commission. Upon termination of Commonwealth service, you would become a "former
executive -level State employee" subject to the restrictions of Section 1103(i) and Section 1103(g)
of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq. The
prohibitions of Section 1103(i) of the Ethics Act set forth above would have to be observed when
applicable. Under Section 1103(i) of the Ethics Act, you would not be prohibited from being
employed by, receiving compensation from, assisting, or acting in a representative capacity for a
business or corporation conditioned upon the assumptions that you did not actively participate in
recruiting the business or corporation to Pennsylvania, and that you did not actively participate in
inducing the business or corporation to open or expand a plant, facility, or branch in Pennsylvania
through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth
of Pennsylvania to the business or corporation.
Additionally, the restrictions of Section 1103(g) of the Ethics Act as outlined above must
be followed. The governmental body with which you would be deemed to have been associated
upon termination of Commonwealth service is the [OFFICE 1] in its entirety, including, but not
limited to [OFFICE 2]. See [REDACTED]. The Section 1103(g) restrictions would encompass
"representation" of "persons" before personnel considered included within the [OFFICE 1].
Furthermore, as a Formal Designee to the [STATE BOARD], you are also considered a
"public official" subj ect 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 et seq.
Upon separation from the Board, you would become a "former public official" subject to Section
1103(g) of the Ethics Act. The former governmental body would be the [STATE BOARD]. See
[REDACTED]. For the first year following separation from the Board, Section 1103(g) of the
Ethics Act would apply and restrict your "representation" of a "person" before the Board.
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.
Confidential Advice, 21-524
May 10, 2021
Page 6
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.
RespectfullyaCounse