Loading...
HomeMy WebLinkAbout22-009 ConfidentialPHONE: 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 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Michael A. Schwartz Shelley Y. Simms DATE DECIDED: 4/21/22 DATE MAILED: 4/22/22 To the Requester: 22-009 This Opinion is issued in response to your letter dated April 1, 2022, by which you requested a confidential advisory from this Commission. I. ISSUE: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a Member of the Pennsylvania General Assembly (the "State Legislator") specifically a Member of the [CHAMBER] who will be leaving public office on [DATE 1], with regard to: (1) Entering into an employment contract with a [TYPE OF ENTITY] prior to [DATE 1 ], for employment that would begin on [DATE 2]; (2) Performing the duties of his public position as a State Legislator during the time period between the execution of an employment contract with the [TYPE OF ENTITY] and [DATE 1]; or (3) Performing work for the [TYPE OF ENTITY] following [DATE 1]. IL FACTUAL BASIS FOR DETERMINATION: Confidential Opinion, 22-009 April 22, 2022 Page 2 You have been authorized by the Honorable [NAME OF STATE LEGISLATOR] (the "State Legislator"), who is a Member of the [CHAMBER], to request a confidential advisory from this Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The State Legislator was elected to represent the residents of the [LEGISLATIVE DISTRICT], which covers all of [COUNTY] and portions of [COUNTY]. The State Legislator recently [PERFORMED A CERTAIN ACTIVITY], and he will be leaving his public office on [DATE 1]. The State Legislator is pursuing opportunities for employment, but he will not begin any employment nor be compensated in any way in any employment position until [A CERTAIN POINT IN TIME]. At this time, the State Legislator is being recruited for a [TYPE OF POSITION] ([THE POSITION]) with a [TYPE OF ENTITY] ([THE ENTITY]). The State Legislator has not received a formal offer of employment from [THE ENTITY]. It is anticipated that [THE ENTITY] will complete its hiring process and make a contract offer to the successful candidate for [THE POSITION] prior to [DATE 2]. The State Legislator has not been involved in his official capacity in any matters related to [THE ENTITY] and [THE ENTITY] has not contacted the State Legislator's office since [THE ENTITY] began its search for a candidate for [THE POSITION]. While [THE ENTITY] is considering the State Legislator for employment, the State Legislator will recuse himself from any matter before the [CHAMBER] that would be related to [THE ENTITY]. If [THE ENTITY] selects the State Legislator as the successful candidate for [THE POSITION], the State Legislator will not perform any services on behalf of nor receive any compensation from [THE ENTITY] until [DATE 2], when his employment with [THE ENTITY] would begin. If the State Legislator would become employed in [THE POSITION], his job duties might involve contact with the [CHAMBER] regarding legislative matters, including but not limited to providing funding to [THE ENTITY] through state grants or direct appropriations. However, the State Legislator acknowledges that for a one-year period following his departure from the [CHAMBER], he would be precluded from appearing before the [CHAMBER] on behalf of [THE ENTITY] or otherwise representing [THE ENTITY] before the [CHAMBER]. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would impose any prohibitions or restrictions upon the State Legislator with regard to entering into an employment contract with [THE ENTITY] prior to [DATE 1 ], for employment that would begin on [DATE 2]; (2) Whether the Ethics Act would impose any prohibitions or restrictions upon the State Legislator with regard to performing the duties of his public position as a State Legislator during the time period between the execution of an employment contract with [THE ENTITY] and [DATE 1]; and (3) Whether the Ethics Act would impose any restrictions upon the State Legislator with regard to performing work for [THE ENTITY] following [DATE 1]. Confidential Opinion, 22-009 April 22, 2022 Page 3 By letter dated April 4, 2022, you were notified of the date, time and location of the executive meeting at which your request would be considered. 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), 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, this 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. As a Member of the [CHAMBER], the State Legislator is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 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. 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 Confidential Opinion, 22-009 April 22, 2022 Page 4 public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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, pursuant to Section 1103(a) of the Ethics Act, 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. Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: ... must act in such a way as to put his [office/public position] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the [public official/public employee] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official/public employee "must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231. The post -termination restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees. 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 Confidential Opinion, 22-009 April 22, 2022 Page 5 (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: § 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; Edlev, 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 Confidential Opinion, 22-009 April 22, 2022 Page 6 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 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; Shart�, Opinion 90-009-R. Having set forth the above general principles, you are advised as follows. The Ethics Act would not prohibit the State Legislator from entering into an employment contract with [THE ENTITY] prior to [DATE I], for employment that would begin on [DATE 2]. At such times as the State Legislator would have an employment contract with [THE ENTITY], the State Legislator could have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the [CHAMBER] involving [THE ENTITY] if such matters would financially impact the State Legislator, a member of his immediate family, or a business with which he or a member of his immediate family is associated. However, to the extent the activities of a state legislator relate to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and this Commission. Confidential Opinion, 05-002; Corrigan, Opinion 87-001. As for other actions, the State Legislator would not transgress Section 1103(a) of the Ethics Act unless: (1) he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated; and (2) his action would constitute one or more specific steps to attain that benefit. See, Kistler, supra. Confidential Opinion, 22-009 April 22, 2022 Page 7 Upon termination of the State Legislator's service with the [CHAMBER], the State Legislator would become a "former public official" subject to the provisions of Section 1103(g) of the Ethics Act. The governmental body with which the State Legislator would be deemed to have been associated upon termination of his service with the [CHAMBER] would be the [CHAMBER] in its entirety. Therefore, for the first year following termination of the State Legislator's service with the [CHAMBER], Section 1103(g) of the Ethics Act would apply and restrict the State Legislator from engaging in any activity that would involve "representation" of a "person" before the [CHAMBER]. In particular, Section 1103(g) of the Ethics Act would prohibit the State Legislator from performing any job duties as an employee of [THE ENTITY] that would involve prohibited representation before the [CHAMBER] as delineated above. 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 in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the Legislative Code of Ethics, 46 P.S. § 143.1 et s�Mc., or the [REDACTED]. IV. CONCLUSION: As a Member of the Pennsylvania General Assembly specifically a Member of the [CHAMBER] the Honorable [NAME OF STATE LEGISLATOR] (the "State Legislator") is a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec. The Ethics Act would not prohibit the State Legislator from entering into an employment contract with a [TYPE OF ENTITY] ([THE ENTITY]) for a [TYPE OF POSITION] prior to [DATE I], for employment that would begin on [DATE 2]. At such times as the State Legislator would have an employment contract with [THE ENTITY], the State Legislator could have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the [CHAMBER] involving [THE ENTITY] if such matters would financially impact the State Legislator, a member of his immediate family, or a business with which he or a member of his immediate family is associated. However, to the extent the activities of a state legislator relate to "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and this Commission. As for other actions, the State Legislator would not transgress Section 1103(a) of the Ethics Act unless: (1) he would be consciously aware of a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated; and (2) his action would constitute one or more specific steps to attain that benefit. Upon termination of the State Legislator's service with the [CHAMBER], the State Legislator would become a "former public official" subject to the provisions of Section 1103(g) of the Ethics Act. The governmental body with which the State Legislator would be deemed to have been associated upon termination of his service with the [CHAMBER] would be the [CHAMBER] in its entirety. Therefore, for the first year following termination of the State Legislator's service with the [CHAMBER], Section 1103(g) of the Ethics Act would apply and restrict the State Legislator from engaging in any activity that would involve "representation" of a "person" before the [CHAMBER]. In particular, Section 1103(g) of the Ethics Act would prohibit Confidential Opinion, 22-009 April 22, 2022 Page 8 the State Legislator from performing any job duties as an employee of [THE ENTITY] that would involve prohibited representation before the [CHAMBER] as delineated above. Pursuant to Section 1107(10) of the Ethics Act, 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 is a public record and will be made available as such. By the Commission, Nicholas A. Colafella. Chair