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HomeMy WebLinkAbout22-547 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 November 4, 2022 22-547 This responds to your letter dated October 19, 2022, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et SeMc ., would impose any prohibitions or restrictions upon you with regard to working in the private sector or serving as a Member of the [Governmental Body] of [Agency 1 ] following your service as [Position]. Brief Answer: YES. Although Section 1103(g) of the Ethics Act would not prohibit you from accepting employment in the private sector or serving as a Member of the [Governmental Body] following your public service, during the first year following termination of your employment as [Position], Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" before your former governmental body, which would consist of the [Entity] in its entirety, including but not limited to the [Divisions] and the [Unit]. You request a confidential advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. Confidential Advice, 22-547 November 4, 2022 Page 2 You are currently employed as [Position]. You state that there is no Commonwealth position description for the position of [Position]. As [Position], you report directly to the [Public Official]. You are responsible for [Performing Certain Duties]. You have oversight authority for decisions in the [Entity], the [Divisions], and the [Type of Bodies]. You interact with [Type of Individuals] and [Particular Public Officials] and their staff on behalf of the [Public Official]. You do not manage or oversee the operations or work of [Agency 2] and you have not directed or made any decisions regarding [Agency 2] or its operations. Your work with regard to [Agency 2] involved [Performing a Certain Activity]. You anticipate that you will resign from your position as [Position] effective [Date, Time], and you plan to commence any new endeavors the next day or thereafter. Given that [an Event Has Occurred], you plan to be sworn in as a Member of the [Governmental Body] following your resignation from your current position. As a Member of the [Governmental Body], your role will be to handle [Certain Matters]. You state that as [Position], you have not been involved in the day-to-day management, operations, or decision -making of [Agency 1], its [Bureau], or the [Governmental Body]. In addition to serving as a Member of the [Governmental Body], you might obtain full- time employment in the private sector in [a Particular Area], which could involve [Engaging in Certain Activities]. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you following termination of your Commonwealth employment. In particular, you pose the following questions: (1) Whether the Ethics Act would impose any restrictions upon you, in a position in the private sector, with regard to communicating with the [Entity], the [Particular Officials], and other Commonwealth officials and employees, including officials and employees of [Type of Bodies]. (2) Whether the Ethics Act would permit you to have direct engagement with [Agency 2]. (3) Whether the Ethics Act would permit you to engage directly with [Agency 1] on [Various Matters], or any other matters within the jurisdiction of [Agency 1 ]. 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 Confidential Advice, 22-547 November 4, 2022 Page 3 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 relevantto 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 [Position], you would be considered a public official/public employee and an "executive -level State employee" subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Consequently, upon termination of your Commonwealth employment, you would become a former public official/public employee and former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: § 1103. Restricted activities (i) Former executive -level employee. --No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. § 1103(i). Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of a new employer, rather than the new employer itself. See, Confidential Opinion, 94-011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business subject to the conditions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth. Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official/public employee from accepting a position of employment. However, it does restrict the former public Confidential Advice, 22-547 November 4, 2022 Page 4 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 following terms related to Section 1103(g) are 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 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 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; Confidential Advice, 22-547 November 4, 2022 Page 5 (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. 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 the 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; Sharp, Opinion 90-009-R. The governmental body with which you would be deemed to have been associated upon termination of your Commonwealth employment, hereinafter collectively referred to as "your former governmental body," would consist of the [Entity] in its entirety, including but not limited to the [Divisions] and the [Unit]. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict you from representing a "person" — including but not limited to a new employer or a governmental body — before your former governmental body as delineated above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. Confidential Advice, 22-547 November 4, 2022 Page 6 Section 1103(g) of the Ethics Act would not prohibit you from accepting employment in the private sector or serving as a Member of the [Governmental Body]. However, during the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would involve representation of a new employer or the [Governmental Body] before your former governmental body, including but not limited to communicating with the [Entity]. Section 1103(g) of the Ethics Act would not prohibit you from communicating with the [Particular Officials] or other officials and employees of the Commonwealth to the extent that you would not be representing a person before your former governmental body as outlined above. Section 1103(g) of the Ethics Act would not prohibit you from engaging directly with [Agency 2] or with [Agency 1] on [Various Matters], or any other matters within the jurisdiction of [Agency 1], as neither Commonwealth agency is included within your former 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 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 applicability of the [Rules]. Conclusion: As [Position], you would be considered a public official/public employee and an "executive -level State employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et SeMc ., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et SeMc . Upon termination of your Commonwealth employment, you would become a former public official/public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act, 65 Pa.C.S. §§ 1103(g), 1103(i). Under Section 1103(i) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business subject to the conditions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. The governmental body with which you would be deemed to have been associated upon termination of your Commonwealth employment, hereinafter collectively referred to as "your former governmental body," would consist of the [Entity] in its entirety, including but not limited to the [Divisions] and the [Unit]. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before your former governmental body as delineated above. The restrictions as to representation outlined above must be followed. Confidential Advice, 22-547 November 4, 2022 Page 7 Section 1103(g) of the Ethics Act would not prohibit you from accepting employment in the private sector or serving as a Member of the [Governmental Body]. However, during the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would involve representation of a new employer or the [Governmental Body] before your former governmental body, including but not limited to communicating with the [Entity]. Section 1103(g) of the Ethics Act would not prohibit you from communicating with the [Particular Officials] or other officials and employees of the Commonwealth to the extent that you would not be representing a person before your former governmental body as outlined above. Section 1103(g) of the Ethics Act would not prohibit you from engaging directly with [Agency 2] or with [Agency 1] on [Various Matters], or any other matters within the jurisdiction of [Agency 1], as neither Commonwealth agency is included within your former 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 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