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Home My WebLink About22-537 Rafferty 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 September 21, 2022 To the Requester: Dennis B. Rafferty, Esquire 22-537 Dear Mr. Rafferty: This responds to your letter dated September 13, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would prohibit a former public official/employee with the Sheriff’s Department of Westmoreland County, Pennsylvania from entering into a contract to provide defensive driving training to members of the Coroner’s Officeof Westmoreland County following his retirement from the Sheriff’s Department. Brief Answer: NO. Although Section 1103(g) of the Ethics Act would prohibit a former public official/employee from engaging in any activity that would involve “representation” of a “person” before the Sheriff’s Department of Westmoreland County during the first year following termination of the individual’s employment with the Sheriff’s Department, Section 1103(g) of the Ethics Act would not prohibit an individual from engaging in those activities with the Coroner’s Office because the Coroner’s Office is not a governmental body with which the individual has been associated. Facts: You request an advisory from the Commission on behalf of John P. Rock, who recently is retired from the Sheriff’s Office of Westmoreland County, Pennsylvania. You have submitted facts, the material portion of which may be fairly summarized as follows. Rafferty-Rock, 22-537 September 21, 2022 Page 2 Mr. Rock and his wife are the owners of John P. Rock, Inc., a corporation that provides defensive driving training and seminars to public and private businesses. On August 18, 2019, the corporation entered into an open-ended contract with Westmoreland County under which the corporation provided defensive driving programs to designated groups of county employees at a fixed price of $2,400.00 per program. Prior to January 19, 2022, the corporation provided programs on three occasions to the Park Police, Sheriff’s Deputies and Public Works employees, respectively. On January 19, 2022, Mr. Rock, who is retired from the Pennsylvania State Police, was named Chief Deputy Sheriff in the Sheriff’s Department of Westmoreland County. Mr. Rock retired from the Sheriff’s Department on September 6, 2022. Following Mr. Rock’s retirement, the corporation received a request to conduct a defensive driving training program for employees of the Coroner’s Office of Westmoreland County under the terms of the 2019 contract. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would prohibit Mr. Rock from entering into a contract to provide defensive driving training to members of the Coroner’s Office of Westmoreland County following his retirement from the Sheriff’s Department of Westmoreland County. 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. As the former Chief Deputy Sheriff of the Sheriff’s Department of Westmoreland County, Mr. Rock would be considered a “former public official” subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act provides: § 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 following terms related to Section 1103(g) are defined in the Ethics Act as follows: Rafferty-Rock, 22-537 September 21, 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 employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term "representation" 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; and (5) lobbying. Popovich, Opinion 89 -005. Section 1103(g) only restricts the former public official/public employee with regard to representation before his former governmental body as that term is defined by the Ethics Act. The former public official/public employee is not restricted as to representation before other agencies or entities. The governmental body with which Mr. Rock would be deemed to have been associated upon termination of service with the Sheriff’s Department of Westmoreland County would be the Sheriff’s Department of Westmoreland County. For the first year following termination of service with the Sheriff’s Department of Westmoreland County, Section 1103(g) of the Ethics Act would apply and restrict Mr. Rockfrom engaging in any activity that would involve “representation” of a “person” beforethe Sheriff’s Department of Westmoreland County. Section 1103(g) of the Ethics Act would not prohibit Mr. Rock from entering into a contract to provide defensive driving training to members of the Coroner’s Office of Westmoreland County, as such activity would not constitute representation before Mr. Rock’s former governmental body. Rafferty-Rock, 22-537 September 21, 2022 Page 4 Conclusion: As the former Chief Deputy Sheriff of the Sheriff’s Department of Westmoreland County, Mr. Rock would be considered a “former public official” subject to Section 1103(g) of the Ethics Act.The governmental body with which Mr. Rock would be deemed to have been associated upon termination of service with the Sheriff’s Department of Westmoreland County would be the Sheriff’s Department of Westmoreland County. For the first year following termination of service with the Sheriff’s Department of Westmoreland County, Section 1103(g) of the Ethics Act would apply and restrict Mr. Rock from engaging in any activity that would involve “representation” of a “person” beforethe Sheriff’s Department of Westmoreland County. Section 1103(g) of the Ethics Act would not prohibit Mr. Rock from entering into a contract to provide defensive driving training to members of the Coroner’s Office of Westmoreland County, as such activity would not constitute representation before Mr. Rock’s former governmental body. 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 than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. 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 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, Bridget K. Guilfoyle Chief Counsel