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HomeMy WebLinkAbout22-507-S 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 March 31, 2022 To the Requester: 22-507-S This responds to your submission received March 25, 2022, by which you requested a supplemental 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 clients of \[PRIVATE BUSINESS ENTITY\] on \[MATTER 1\] or \[MATTER 2\] following termination of your employment as the \[DIRECTOR\] for \[PUBLIC OFFICIAL\], where such \[MATTERS\] would be: (1) directed to the public or \[PARTICULAR PERSONS\], without you engaging in any behavior to identify yourself as the planner or organizer of the \[MATTERS\]; or (2) directed to the \[GOVERNMENTAL BODY\], without you engaging in any behavior to identify yourself as the planner or organizer of the \[MATTERS\]? Brief Answer: Section 1103(g) of the Ethics Act would not prohibit you from performing work for \[PRIVATE BUSINESS ENTITY\] on such \[MATTERS\] subject to the condition that in so doing, you would not engage in any activity that would involve including but not limited to yourself, \[PRIVATE BUSINESS ENTITY\], or a client of \[PRIVATE BUSINESS ENTITY\] before your former governmental body, the \[GOVERNMENTAL BODY\]. Facts: By letter dated January 14, 2022, you submitted an initial request for a confidential advisory regarding the post-employment restrictions of the Ethics Act. In response to your initial Confidential Advice, 22-507-S March 31, 2022 Page 2 request, Confidential Advice 22-507 was issued to you on January 27, 2022. Confidential Advice 22-507 was based upon submitted facts that were 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: (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. Confidential Advice, 22-507, at 1-2. The Confidential Advice determined that in the former capacity as the \[DIRECTOR\] for \[PUBLIC OFFICIAL\], you were a of the State Ethics Commission, and that upon termination of your Commonwealth employment, e Ethics Act. The Confidential Advice determined that 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. The Confidential Advice set forth the restrictions of Section 1103(g) of the Ethics Act and stated that 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 including but not limited to yourself and/or \[PRIVATE BUSINESS ENTITY\] before the \[GOVERNMENTAL BODY\]. In response to your specific question, you were 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 \[GOVERNMENTAL BODY\]. In your submission received March 25, 2022, you request a supplemental advisory based upon the following additional facts. Confidential Advice, 22-507-S March 31, 2022 Page 3 Clients of \[PRIVATE BUSINESS ENTITY\] will engage both you and \[PRIVATE BUSINESS ENTITY\] to plan, organize, and execute \[MATTER 1\] related to \[TOPIC\]. The work involved in planning and organizing \[MATTER 1\] could include \[CERTAIN ACTIVITIES\]. Clients will also engage both you and \[PRIVATE BUSINESS ENTITY\] to plan and execute \[MATTER 2\] related to \[TOPIC\]. The work involved with \[MATTER 2\] could include \[PARTICULAR ACTIVITIES\]. You state that you would not engage in any behavior to identify yourself as the planner or organizer of \[MATTER 1\] or \[MATTER 2\]. \[MATTER 1\] would be directed at the public, while \[MATTER 2\] would be directed at the public or \[PARTICULAR PERSONS\]. Based upon the above additional facts, you ask whether Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon you with regard to working on \[MATTER 1\] and \[MATTER 2\]. You further ask whether \[MATTER 1\] and \[MATTER 2\] could be directed to the \[GOVERNMENTAL BODY\] as long as you would not be identified by the \[MATTERS\] efforts. 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. This supplemental advisory incorporates by reference the recitation of the Section 1103(g) restrictions of the Ethics Act. Conclusion: In response to your request for a supplemental advisory, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from performing work for clients of \[PRIVATE BUSINESS ENTITY\] on \[MATTER 1\] directed to the public or \[MATTER 2\] directed to the public or \[PARTICULAR PERSONS\], where you would not engage in any behavior to identify yourself as the planner or organizer of the \[MATTERS\], as such activity would not constitute representation before your former governmental body. Section 1103(g) of the Ethics Act would not prohibit you from performing work for clients of \[PRIVATE BUSINESS ENTITY\] on \[MATTER 1\] or \[MATTER 2\] directed to the \[GOVERNMENTAL BODY\] subject to the condition that in so doing, you would not engage in any activity that would make known to the \[GOVERNMENTAL BODY\] your work for \[PRIVATE BUSINESS ENTITY\] or its clients. 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 Confidential Advice, 22-507-S March 31, 2022 Page 4 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, Martin W. Harter Acting Chief Counsel