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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
June 24, 2021
To the Requester:
21-532
This responds to your letter dated \[REDACTED\], by which you requested an advisory from
the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues
presented below:
Issue:
1. Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et
seq., would impose prohibitions or restrictions upon you with regard to performing work
for a \[TYPE OF FIRM\] that does business with the Commonwealth following termination
of your employment as a \[POSITION\] for \[STATE AGENCY 1\]?
Brief Answer: Yes. During the first year following termination of your employment with
\[STATE AGENCY 1\], Section 1103(g) of the Ethics Act would apply and restrict you from
engaging in including but not limited to a new employer,
such as a \[TYPE OF FIRM\] that does business with the Commonwealth before \[STATE
AGENCY 1\].
2. Whether the elements of a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), pertaining to conflict of interest, would be established if, following termination of
your employment with \[STATE AGENCY 1\], you would accept employment with a
\[TYPE OF FIRM\] (Firm) that you had interaction with while you were employed with
\[STATE AGENCY 1\]?
Brief Answer: The elements of a violation of Section 1103(a) of the Ethics Act would not
be established as a result of your entering into an employment relationship with the Firm
subject to the conditions that: (1) you did not use the authority of your public position with
Confidential Advice, 21-532
June 24, 2021
Page 2
\[STATE AGENCY 1\] in matter(s) pertaining to the Firm when you had an actual or
reasonable expectation that you would enter into an employment arrangement with the
Firm or would otherwise receive a private pecuniary benefit relating to the Firm; and (2)
you did not otherwise use the authority of your public position with \[STATE AGENCY 1\]
or confidential information received as a result of being in your public position with
\[STATE AGENCY 1\] in furtherance of securing an employment arrangement with the
Firm or other private pecuniary benefit relating to the Firm. Cf., Desmond, Opinion 08-
004.
Facts:
You request an advisory from the Commission based upon extensive submitted facts, the
material portion of which may be fairly summarized as follows.
On \[DATE\], you retired from your employment with \[STATE AGENCY 1\] as a
\[POSITION\], in which capacity you served as a \[REDACTED\] in the \[UNIT\]. You have
submitted a copy of the job classification specifications for the position of \[POSITION\] (job code
\[REDACTED\]), which is incorporated herein by reference. Immediately prior to the
commencement of your employment with \[STATE AGENCY 1\] in \[MONTH, YEAR\], you were
employed with \[STATE AGENCY 2\] as a \[REDACTED\].
A \[TYPE OF FIRM\] named \[REDACTED\] (the Firm) has a five-year contract with
\[STATE AGENCY 1\] (the \[STATE AGENCY 1\] Contract) as a \[TYPE OF CONSULTANT\].
The \[STATE AGENCY 1\] Contract was executed in \[MONTH, YEAR\], before you began
employment with \[STATE AGENCY 1\]. The Firm is a \[TYPE OF CONSULTANT\] for two
\[STATE AGENCY 2\] contracts (the \[STATE AGENCY 2\] Contracts). While you were employed
with \[STATE AGENCY 2\], you participated in the process that selected the \[TYPE OF
CONSULTANT\] for the \[STATE AGENCY 2\] Contracts.
Between \[MONTH, YEAR\] and \[MONTH, YEAR\], you received telephone calls from the
Firm \[OFFICER 1\] and the Firm \[OFFICER 2\], each of whom inquired as to whether you would
have any interest in working for the Firm. You explained to each of them that you were not
interested in separating from your Commonwealth employment at the time. As detailed in pages
3-5 of your advisory request letter, between \[MONTH, YEAR\] and \[MONTH, YEAR\], you
performed job duties in your position with \[STATE AGENCY 1\] that involved interacting with
the Firm \[OFFICER 2\] and the Firm \[OFFICER 1\] with regard to matters pertaining to the \[STATE
AGENCY 1\] Contract and the possibility of the Firm working on a \[PROJECT\].
In \[MONTH, YEAR\], you received a second telephone call from the Firm \[OFFICER 2\],
who again inquired as to whether you would have any interest in working for the Firm. You
explained to him that you were still not interested in separating from your Commonwealth
employment, but you would be eligible to retire without a penalty in your retirement benefits by
mid-\[YEAR\].
Confidential Advice, 21-532
June 24, 2021
Page 3
As detailed in pages 5-8 of your advisory request letter, between \[MONTH, YEAR\] and
\[DATE\], you performed job duties in your position with \[STATE AGENCY 1\] that involved
interacting with the Firm \[OFFICER 1\], Firm employees, and \[STATE AGENCY 1\] employees
with regard to assigning the work for the \[PROJECT\] to the Firm. On \[DATE\], during a telephone
conversation with the Firm \[OFFICER 1\] on matters pertaining to the \[PROJECT\], you informed
him that you would be retiring on \[DATE\]. Between \[DATE\] and \[DATE\], you had conversations
with the Firm \[OFFICER 2\] about a position with the Firm, and on \[DATE\], you received a written
offer of employment from the Firm \[OFFICER 2\].
Based upon the above submitted facts, you seek guidance as to whether the Ethics Act
would impose prohibitions or restrictions upon you following termination of your employment
with \[STATE AGENCY 1\]. In particular, the following questions are presented by your advisory
request:
1. Wmental body with which a public official or public employee
-employment restrictions of
Section 1103(g) of the Ethics Act?
2. During the one-year period of applicability of Section 1103(g) of the Ethics Act, would
you be prohibited from representing the Firm or another \[TYPE OF FIRM\] before \[STATE
AGENCY 2\] with regard to existing or proposed \[REDACTED\] with \[STATE AGENCY
2\]?
3. Would you have a conflict of interest under Section 1103(a) of the Ethics Act with regard
to accepting employment with 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.
It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act,
an opinion/advice may be given only as to prospective (future) conduct. To the extent that your
inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your
inquiry may and shall be addressed.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
Confidential Advice, 21-532
June 24, 2021
Page 4
(a) Conflict of interest.--No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as follows:
§ 1102. Definitions
Conflict or conflict of interest. Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through his
holding public office or employment for the private pecuniary
benefit of himself, a member of his immediate family or a business
with which he or a member of his immediate family is associated.
The term does not include an action having a de minimis economic
impact or which affects to the same degree a class consisting of the
general public or a subclass consisting of an industry, occupation or
other group which includes the public official or public employee, a
member of his immediate family or a business with which he or a
member of his immediate family is associated.
Authority of office or employment. The actual power
provided by law, the exercise of which is necessary to the
performance of duties and responsibilities unique to a particular
public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethi
the authority of public office/employment or confidential information received by holding such a
public position for the private pecuniary benefit of the public official/public employee himself,
any member of his immediate family, or a business with which he or a member of his immediate
family is associated. The use of authority of office is not limited merely to voting, but extends to
any use of authority of office including, but not limited to, discussing, conferring with others, and
lobbying for a particular result. Juliante, Order 809.
Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or
give to a public official/public employee anything of monetary value and no public official/public
employee shall solicit or accept anything of monetary value based upon the understanding that the
vote, official action, or judgment of the public official/public employee would be influenced
Confidential Advice, 21-532
June 24, 2021
Page 5
thereby. Reference is made to these provisions of the law not to imply that there has been or will
be any transgression thereof but merely to provide a complete response to the questions presented.
In the former capacity as a \[POSITION\] for \[STATE AGENCY 1\], you were a
See,
Pa.C.S. § 1102; 51 Pa. Code § 11.1; \[CITE\]. This conclusion is based upon the submitted facts
and the job classification specifications, which when reviewed on an objective basis, indicate
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 \[STATE AGENCY 1\], you
became 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.
Confidential Advice, 21-532
June 24, 2021
Page 6
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
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 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
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
Confidential Advice, 21-532
June 24, 2021
Page 7
body with which a public official/pu
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 are deemed to have been associated upon
termination of your employment with \[STATE AGENCY 1\] is \[STATE AGENCY 1\] in its
entirety, including but not limited to the \[UNIT\]. Therefore, for the first year following termination
of your employment with \[STATE AGENCY 1\], Section 1103(g) of the Ethics Act would apply
before \[STATE AGENCY 1\].
Having set forth the restrictions of Sections 1103(a) and 1103(g) of the Ethics Act, your
specific questions shall now be considered.
Your first question has been addressed above.
With regard to your second question, you are advised that Section 1103(g) of the Ethics
Act would not prohibit you from accepting employment with the Firm or another \[TYPE OF
FIRM\]. However, during the first year following termination of your employment with \[STATE
AGENCY 1\], Section 1103(g) would prohibit you from engaging in any activities that would
involve prohibited representation before \[STATE AGENCY 1\]. Section 1103(g) would not
prohibit you from representing the Firm or another \[TYPE OF FIRM\] before \[STATE AGENCY
2\] with regard to existing or proposed \[REDACTED\] with \[STATE AGENCY 2\].
In response to your third question regarding conflict of interest, you are advised that the
elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of
your entering into an employment relationship with the Firm subject to the conditions that: (1) you
did not use the authority of your public position with \[STATE AGENCY 1\] in matter(s) pertaining
to the Firm when you had an actual or reasonable expectation that you would enter into an
employment arrangement with the Firm or would otherwise receive a private pecuniary benefit
relating to the Firm; and (2) you did not otherwise use the authority of your public position with
\[STATE AGENCY 1\] or confidential information received as a result of being in your public
position with \[STATE AGENCY 1\] in furtherance of securing an employment arrangement with
the Firm or other private pecuniary benefit relating to the Firm. Cf., Desmond, Opinion 08-004.
(It is noted that the submitted facts do not clearly indicate at what point in time you would have
had an actual or reasonable expectation that you would enter into an employment arrangement
with the Firm.)
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:
Confidential Advice, 21-532
June 24, 2021
Page 8
In the former capacity as a \[POSITION\] for \[STATE AGENCY 1\], you were a public
employee subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon
termination of your employment with \[STATE AGENCY 1\], you became a former public
employee subject to Section 1103(g) of the Ethics Act. The former governmental body is
\[STATE AGENCY 1\] in its entirety, including but not limited to the \[UNIT\]. For the first year
following termination of your employment with \[STATE AGENCY 1\], Section 1103(g) of the
before \[STATE AGENCY 1\].
The restrictions as to representation outlined above must be followed.
Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with
the Firm or another \[TYPE OF FIRM\]. However, during the first year following termination of
your employment with \[STATE AGENCY 1\], Section 1103(g) would prohibit you from engaging
in any activities that would involve prohibited representation before \[STATE AGENCY 1\].
Section 1103(g) would not prohibit you from representing the Firm or another \[TYPE OF FIRM\]
before \[STATE AGENCY 2\] with regard to existing or proposed \[REDACTED\] with \[STATE
AGENCY 2\].
With regard to Section 1103(a) of the Ethics Act, pertaining to conflict of interest, you are
advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be
established as a result of your entering into an employment relationship with the Firm subject to
the conditions that: (1) you did not use the authority of your public position with \[STATE
AGENCY 1\] in matter(s) pertaining to the Firm when you had an actual or reasonable expectation
that you would enter into an employment arrangement with the Firm or would otherwise receive a
private pecuniary benefit relating to the Firm; and (2) you did not otherwise use the authority of
your public position with \[STATE AGENCY 1\] or confidential information received as a result of
being in your public position with \[STATE AGENCY 1\] in furtherance of securing an employment
arrangement with the Firm or other private pecuniary benefit relating to the Firm. Cf., Desmond,
Opinion 08-004. (It is noted that the submitted facts do not clearly indicate at what point in time
you would have had an actual or reasonable expectation that you would enter into an employment
arrangement with the Firm.)
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.
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
Confidential Advice, 21-532
June 24, 2021
Page 9
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