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Home My WebLink About22-517 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 April 1, 2022 To the Requester: 22-517 This responds to your submission received March 24, 2022, by which you requested an 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 prohibit you from accepting employment with the \[ENTITY\] following termination of your employment as a \[POSITION\] for the \[GOVERNMENTAL BODY\] of the \[POLITICAL SUBDIVISION\]? Brief Answer: NO. The Ethics Act would not prohibit you from accepting employment with the \[ENTITY\]. However, during the first year following termination of your employment with the \[GOVERNMENTAL BODY\] of the \[POLITICAL SUBDIVISION\], Section 1103(g) of the Ethics Act would apply and prohibit you from engaging in any including but not limited to a new employer such as the \[ENTITY\] before your former governmental body, the \[GOVERNMENTAL BODY\] of the \[POLITICAL SUBDIVISION\]. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Effective \[DATE\], you terminated your employment as a \[POSITION\] for the \[GOVERNMENTAL BODY\] of the \[POLITICAL SUBDIVISION\]. You have submitted a copy of a position description for your former position with the Confidential Advice, 22-517 April 1, 2022 Page 2 \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], which document is incorporated herein by reference. Your specialty as a \[POSITION\] was \[FUNCTION\]. You are currently employed with the \[GOVERNMENTAL ENTITY\] at the \[FACILITY\], which is located in the \[POLITICAL SUBDIVISION\]. In your current employment, you do not have any interaction with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\]. You recently received a tentative job offer from the \[DIVISION\] of the \[ENTITY\]. You state that your potential position with the \[ENTITY\] would require some representation before the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\]. You believe that you could still work for the \[ENTITY\] would require interaction with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\]. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to accepting employment with the \[ENTITY\]. 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 a \[POSITION\] for the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\] Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the Position Description, which when reviewed on an objective basis, indicates 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 the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], you became 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 h which he has been Confidential Advice, 22-517 April 1, 2022 Page 3 § 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. 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; (5) lobbying; and (6) acting to make known to the former governmental body the Confidential Advice, 22-517 April 1, 2022 Page 4 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 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 persons 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 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; Sharp, Opinion 90-009-R. The governmental body with which you are deemed to have been associated upon termination of your employment with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\] is the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\] in its entirety. Therefore, for the first year following termination of your employment with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], 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 a new employer before the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\]. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the \[ENTITY\]. However, during the first year following termination of your employment with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would Confidential Advice, 22-517 April 1, 2022 Page 5 \[ENTITY\] before the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\] as outlined 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 a \[POSITION\] for the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], you were a Regulations of the State Ethics Commission. Upon termination of your employment with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], you became a The governmental body with which you are deemed to have been associated upon termination of your employment with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\] is the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\] in its entirety. For the first year following termination of your employment with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], 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 a new employer before the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\]. 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 \[ENTITY\]. However, during the first year following termination of your employment with the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\], Section 1103(g) of the Ethics Act would p \[ENTITY\] before the \[POLITICAL SUBDIVISION\] \[GOVERNMENTAL BODY\] as outlined above. 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 Confidential Advice, 22-517 April 1, 2022 Page 6 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