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HomeMy WebLinkAbout21-002 ConfidentialPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSINLE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: mwgthies. pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 OPINION 011F THE COMMISSION .1L I Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Michael A. Schwartz Shelley Y. Simms DATE DECIDED: 9/14/21 DATE MAILED: 9/21/21 To the Requester: This Opinion is issued in response to the appeal of Confidential Advice, 21-532, which was issued on June 24, 2 02 1. I. Issues: Would acceptance of employment with a consulting firm (FIRM) following termination of employment from [STATE AGENCY 1] constitute a "conflict of interests" violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a)? 2. Would acceptance of an offer of employment from a [FIRM] which you recommended be awarded a [STATE AGENCY 1] contract, who at the same time was recruiting you for hire, result in "accepting improper influence" in violation of Section I I 03(c) of the Ethics Act, 65 Pa.C.S. § 1103(c)? 3. 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 [FIRM], that does business with the Commonwealth, following ten-nination of your employment as a [POSITION] for [STATE AGENCY 1]? Confidential Opinion, 21-002 September 14, 2021 Page 2 11. Facts: By letter dated [REDACTED], you requested an Advice of Counsel seeking a confidential advisory concerning three specific sections of the Ethics Act: Conflict of Interests; Accepting Improper Influence; and Former Official or Employee. Your letter was processed for issuance as an Advice of Counsel and on June 24, 2021, Confidential, Advice, 21-532 was issued to you. Confidential Advice, 21-532 summarized the submitted facts 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 I] Contract was executed in [MONTH, YEAR], before you began employment with [STATE AGENCY 1]. The Firth 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 Confidential Opinion, 21-002 September 14, 2021 Page 3 Commonwealth employment, but you would be eligible to retire without a penalty in your retirement benefits by mid -[YEAR]. 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 11 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]. Confidential Advice, 21-532 at 2-3 On [REDACTED], you appealed Confidential Advice, 21-532, specifically stating the following: First, this request for appeal provides a general background of the work order process and interaction between [STATE AGENCY I]'s [UNIT] and the consultants which have executed open-end [] agreements. I will also provide background of interaction between the [UNIT] and personnel from the [UNIT]'s [sic] (Clients). Second, I will correct/clarify the summary from the Advice of Counsel found in the Facts Section on page 2 of 9. Third, I am uncertain that the situation of my participation on [TYPE OF CONSULTANT] as described in my request for advisory opinion was specifically addressed in the Advice of Counsel. Fourth, this request for appeal also expands and clarifies the extensive submitted facts from my original request for advisory opinion submitted to the Ethics Commission on [REDACTED] via email. Because the facts were identified with numerically bulleted paragraphs, I will reference the paragraph bullet number and date from the initial request letter that I submitted to the Ethics Commission. Last, [t]his request for appeal provides additional facts to address the following parenthetical statement found on page 7 of 9 in the Confidential Opinion, 21-002 September 14, 2021 Page 4 Discussion Section and on page 8 of 9 in the Conclusion Section from the Advice of Counsel. (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.) Letter of Appeal ([REDACTED]) at 1. (Emphasis in original.) Additionally, you provided as follows: As detailed in my [REDACTED] request for an advisory opinion and expanded/clarified in this appeal letter. I did not have a reasonable or actual expectation of employment with [FIRM] until [REDACTED DATE] at which time I had already, in effect, recused myself, albeit unintentionally, from receiving and reviewing [FIRM]'s technical and price proposals. Therefore, because I did not review the proposals [sic] I also did not recommend the execution of the work order which I suspect did not occur prior to my retirement date. Furthermore, I did not have delegated signature authority for the approval and execution of work orders at [STATE AGENCY 1]. 1 had previously been granted delegated signature authority for work orders at [STATE AGENCY 2] but not at [STATE AGENCY 1]. Furthermore, I did not have the authority to make unilateral decisions regarding project scope or have budgetary authority to fund projects. This was done in collaboration between the [UNIT] and the Clients (i.e., [UNIT]) because the Clients provided the funding for the projects..[sic] Letter of Appeal ([REDACTED]) at 4. In addition to the foregoing, all original facts submitted within your [DATE REDACTED] and [DATE REDACTED] correspondence and any accompanying documentation, are incorporated herein by reference. III. 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), an Opinion is issued to the requester based upon the facts that the requester has submitted. In issuing the Opinion 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 Opinion only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Confidential Opinion, 21-002 September 14, 2021 Page 5 It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an Opinion may only be given 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 Opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed, albeit not necessarily in the same order in which it was raised. Former Official or Employee 65 Pa. C.S. §1103(g) In your 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. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1; [LEGAL 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(ics) 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 I I03(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 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 eprso_n, 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 Opinion, 21-002 September 14, 2021 Page 6 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 anew 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 Confidential Opinion, 21-002 September 14, 2021 Page 7 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; SiroW, 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 [BUREAU]. Therefore, for the first year following termination of your employment with [STATE AGENCY 1], Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before [STATE AGENCY 11, including but not limited to [FIRM]. Any restrictions pursuant 1103 (g) would not be applicable to [STATE AGENCY 2], as you have not been associated with [STATE AGENCY 2] since [DATE REDACTED]. Conflict of Interests 65 Pa. C.S. §1103(a) 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 (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. Confidential Opinion, 21-002 September 14, 2021 Page 8 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 Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using 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. You have requested an Opinion seeking confirmation that "accepting a position with a consulting firm would not result in a conflict of interest in the case where [your] Commonwealth work responsibilities required [you] to participate on [TYPE OF CONSULTANT] committees that reviewed, scored, ranked, and selected consulting firms for active contracts that have not yet expired" and a "determination whether [you are] precluded from working for the consulting firm or only precluded from working on those contracts where [you] participated in the selection of the consulting firm, or not precluded from either provided that [you are] NOT considered a former employee from the governmental body with which [you] have been associated for one year after [you] leave that body. Letter of Request ([REDACTED]) at 2. (Emphasis in original.) Acceptance of employment from [FIRM] ([FIRM/the Firm) following your use of office by serving on a selection committee resulting in the Firm contracting with [STATE AGENCY 21 would not appear to constitute a conflict of interest; HOWEVER, your use of office as a [POSITION] for [STATE AGENCY 1] by specifically recommending and advocating for the use of [FIRM] ([FIRM]/the Firm) for a [STATE AGENCY 1] project, while being recruited for employment with [FIRM]/the Firm, is concerning. You have provided, in pertinent part, the following facts: Confidential O union, 21-002 September 14, 2021 Page 9 Although I did not participate in the selection committee for [CONTRACT]1'1, I was directly involved in assigning a work order and had interaction with the [FIRM] during the process. Between February and mid -March [REDACTED] (approximate dates): I received a phone call from the [[OFFICER 11 of [FIRM] inquiring whether I would have any interest in working for [FIRM]. I explained that I was not interested in separating from Commonwealth employment at that time. Between mid -March and April [REDACTED] (approximate dates): I received a phone call from the [[OFFICER 2] of [FIRM] inquiring whether I would have any interest in working for [FIRM]. I explained again that I was not interested in separating from Commonwealth employment at that time. September/October [REDACTED] (approximate dates): I questioned the [UNIT 1 ] [CHIEF] why he was not assigning work orders to [FIRM] using [CONTRACT] when an executed active agreement existed. October/November [REDACTED] (approximate dates): I discussed with the [FIRM] [[OFFICER 1] by phone regarding their ability to work on the [PROJECT]; I determined the scope of work for existing [CONTRACT] met the needs for the scope of the project; the [FIRM] [[OFFICER 11 indicated they were capable and available to work on the project and understood the project's importance and visibility to [STATE AGENCY 1]. November [REDACTED] (approximate date): I received another phone call from the [[OFFICER 2] of [FIRM] inquiring whether I would have any interest in working for [FIRM]. I explained that I was still not interested in separating from Commonwealth employment at that time because I needed to wait until such time when I could retire without a penalty in retiree benefits; however, this time I did indicate that I would be eligible to retire by mid [REDACTED]. April [REDACTED] : I asked the [UNIT I] [CHIEF] to confirm with the [UNIT 2] that a work order was still able to be executed as the engineering agreement [CONTRACT]was due to expire in November [REDACTED]. April [REDACTED]: The [CHIEF] for [UNIT 1] forwarded an email to me from the division chief for [UNIT 2] stating that another available firm should be used for the project because he did not think the design work could be completed before the expiration date. 'The existing five-year contract between [STATE AGENCY I ] and [FIRM]/the Firm. The contract ([CONTRACT]) was advertised in February [REDACTED] and the contract was executed in November [REDACTED]. You were not an employee of [STATE AGENCY 1] in [REDACTED] and did not participate on the selection committee for the [STATE AGENCY 1] agreement. You did participate on [TYPE OF CONSULTANT] for at least two existing contracts while employed at [STATE AGENCY 2] for which [FIRM] is a sub -consultant. Confidential Opinion, 21-002 September 14, 2021 Page 10 April [REDACTED]: I sent an email to the [FIRM] [[OFFICER 11 making him aware of the other [CHIEF]'s response regarding the work order; I also told him that I would follow- up with the other [CHIEF]. April [REDACTED]: After several unsuccessful attempts to reach the other division chief by phone. I sent an email explaining my reasoning for assigning the work to [FIRM]. April [REDACTED]: a. I received a reply from the [CHIEF] for [UNIT 2] indicating time extensions should be avoided but could be done for this agreement providing the consultant provided an assurance that the project would be substantially complete (i.e., 90%) by the original agreement expiration date. b. I replied to the message from the [EMPLOYMENT RECRUITER] [employment recruiter] and we scheduled a phone call for [REDACTED] on [] April [REDACED] to discuss the position in his April [REDATED] message. He asked that I forward a copy of my resume so he would have a chance to review it before our phone call; I sent it by email on April [REDACTED]. I had a telephone conversation with the [FIRM] [[OFFICER I] and shared with him the information from the [CHIEF] [UNIT 21; he believed the work could be brought to a point of substantial completion (i.e., 90%) before the contract expiration date. d. I also shared with the [FIRM] [[OFFICER 1 ] that I had signed my retirement papers four weeks earlier and my retirement date was May [REDACTED]. I had already shared this same information with at least two other consultants as I was transitioning projects to the respective section chiefs that reported to me; this occurred as my last day approached. Letter of Request ([REDACTED]) at 2-8. The Commission rejects your contention that you did not possess a reasonable or actual expectation of employment with [FIRM] until May [REDACTED], as asserted in your Letter of Appeal ([REDACTED]) at page 4. At the time you recommend the use of [FIRM]/the Firm in September/October [REDACTED], you possessed knowledge that you were being pursued as a candidate for employment by [FIRM]/the Firm, having no less than two separate conversations with the [OFFICER 2] and [OFFICER 1] of [FIRM] specifically discussing employment. Within a four day span, you: recommended and advocated to utilize [FIRM]/the Firm for the [PRO.IECT]/[STATE AGENCY 1] project even after the [CHIEF] for [UNIT 21 sought to use a firm other than [FIRM]/the Firm; communicated the [UNIT 2] [CHIEF]Is concerns to [FIRM]/the Firm; and notified [FIRM]/the Firm's [[OFFICER 1] of your Commonwealth Retirement. Confidential Opinion, 21-002 September 14, 2021 Page 11 In Neff, Order 1484, the Commission held: In considering the Consent Agreement, we accept the parties' recommendation that no violation of Section 1103(a) of the Ethics Act occurred under the Stipulated Fact Findings. Between October 2004 and August 2005, Neff, in her public position as CIO /Acting CEO of Wireless Philadelphia, negotiated five no bid contracts with Civitium on behalf of the City /Wireless Philadelphia. Neff did not begin having discussions with Richardson about her possible employment with Civitium until May 2006, approximately ten months after she last participated in awarding a no bid contract to Civitium, and such discussions were not initiated by Neff. There is no basis in the Stipulated Fact Findings for concluding that Neff participated in approving no bid contracts and approving payments to Civitium at a time when she was seeking employment with Civitium, or had any reasonable expectation of seeking employment with Civitium. See, Amato, Opinion 89 -002. Neff, Order 1484 at 22. (Emphasis added.) Your recommendation to utilize [FIRM]/the Firm while at the same time you were engaged in discussions of possible employment with [FIRM]/the Firm may serve as the basis for an allegation of a conflict of interests. The Opinion of the Commission set forth herein does not constitute a final adjudication nor is it an Order of the Commission, but rather is an Opinion as to prospective (future) conduct based upon the facts that the requester has submitted. See 65 Pa.C.S. §§ 1107(10), (11), (13). Any finding of a conflict of interests in violation of the Ethics Act must be supported by sufficient clear and convincing evidence. Accepting Improper Influence 65 Pa. C.S. §1103(c) Pursuant to Section 1103(c) of the Ethics Act, a public official/public employee is prohibited from seeking or accepting any improper influence: § 1103. Restricted activities (c) Accepting improper influence. --No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S.§I103(c). Confidential Opinion, 21-002 September 14, 2021 Page 12 Section 1103(c) of the Ethics Act (65 Pa.C.S. §§I 103(c)) provides in part that 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 thereby. As to seeking improper influence/accepting improper influence, the submitted facts do not indicate a clear "understanding" between yourself and any representative(s) of [FIRM]/the Firm regarding your recommendation/influence regarding the awarding the [PROJECT]/[STATE AGENCY 1] contract to [FIRM] and any offer of employment. There is concern as to the timing of certain events, however, the mere appearance of impropriety will not suffice to establish a conflict of interest under the most recent version of the Ethics Act (Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq. See Toft, 06- 530. The Ethics Act declares that "public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust." 65 Pa.C.S. §1101.1 Furthermore, by enacting the Ethics Act, the General Assembly declared "[i]n order to strengthen the faith and confidence of the people of this Commonwealth in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of [...] public office do not conflict with the public trust." Id. Regardless of the timings of events, an answer as to whether undue influence has been sought or accepted cannot be provided through this Opinion, as the Commission cannot and will not speculate as to your understanding of the donor's intent. Nonetheless, at times, the perception of impropriety may be as damaging as actual impropriety itself. IV. Conclusion: In your 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 11 in its entirety, including but not limited to the [BUREAU]. For the first year following termination of your employment with [STATE AGENCY 1], Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" 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 consulting 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 consulting firm before [STATE AGENCY 2] with regard to existing or proposed agreements with [STATE AGENCY 2]. Confidential Opinion 21-002 September 14, 2021 Page 13 With regard to conflict of interest, the Commission is of the opinion that the facts, as submitted, may serve as a basis for an allegation of a violation of Section 1103(a), 65 Pa.C.S.§1103(a) conflict of interests. An answer as to whether undue influence has been sought or accepted cannot be provided through this Opinion, as the Commission cannot and will not speculate as to your understanding of the donor's intent. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter will be made available as a public record. By the Commission, icholas A. Co fella Chair