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HomeMy WebLinkAbout22-507 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 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 January 27, 2022 22-507 This responds to your correspondence dated [REDACTED], by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general 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 [PRIVATE BUSINESS ENTITY] following termination of your employment as the [DIRECTOR] for [GOVERNMENTAL BODY]? Brief Answer: YES. During the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Actwould apply and restrictoou from engaging in any activity that would involve "representation" of a "person" including but not limited to yourself and/or [PRIVATE BUSINESS ENTITY] before your former governmental body, the [GOVERNMENTAL BODY]. Facts: You request a confidential advisory from the Commission regarding the post -employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows: From [REDACTED DATE] to [REDACTED DATE], you were employed as the [DIRECTOR] for [PUBLIC OFFICIAL]. In that capacity, you communicated with various Commonwealth agencies on behalf of the [GOVERNMENTAL BODY]. You reported to the [PUBLIC OFFICIAL] Chief of Staff and [PUBLIC OFFICIAL]. As of [DATE REDACTED], you became the principal of [PRIVATE BUSINESS ENTITY]. The activities which will be engaged in by [PRIVATE BUSINESS ENTITY] include: Confidential Advice, 22-507 January 27, 2022 Page 2 (1) strategic communications; (2) crisis communications, risk management, and rapid response; (3) issue advocacy; (4) executive communications, executive positioning, and thought leadership; (5) change management, organizational planning, and development; and (6) research and intelligence. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your Commonwealth employment. In particular, you ask whether the Ethics Act would impose any restrictions upon you with regard to interacting and communicating with the Commonwealth and its agencies. 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. In the former capacity as the [DIRECTOR] for [PUBLIC OFFICIAL], 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. Consequently, upon termination of your Commonwealth employment, 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 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: Confidential Advice, 22-507 January 27, 2022 Page 3 § 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/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; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89-005; Edley, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. 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 Confidential Advice, 22-507 January 27, 2022 Page 4 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 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; ShaM, Opinion 90-009-R. The governmental body with which you are deemed to have been associated upon termination of your Commonwealth employment is the [GOVERNMENTAL BODY] in its entirety. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to yourself and/or [PRIVATE BUSINESS ENTITY] before the [GOVERNMENTAL BODY]. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from interacting and communicating with the Commonwealth and its agencies subject to the condition that in so doing, you would not engage in prohibited representation before the [GOVERNMENTAL BODY] as delineated above. 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: In the former capacity as the [DIRECTOR] for [PUBLIC OFFICIAL], you were a "public employee" subject to the Ethics Act, 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et SeMc . Upon termination of your Commonwealth employment, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. Your former governmental body is the [GOVERNMENTAL BODY] in its entirety. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to yourself and/or [PRIVATE BUSINESS ENTITY], of which you are the principal before the [GOVERNMENTAL BODY]. The restrictions as to representation outlined above must be followed. Confidential Advice, 22-507 January 27, 2022 Page 5 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. An adapted version of this letter will be made available as a public record. 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. QCounse