HomeMy WebLinkAbout22-547-CL 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
December 28, 2022
To the Requester:
22-547-CL
This responds to your letter dated November 28, 2022, by which you requested clarification
of Confidential Advice 22-547 as to the issues presented below regarding the post-employment
restrictions of Section 1103(g) of the Public Official and Employe
Pa.C.S. § 1103(g):
Issues:
(1) Whether, for purposes of determining what would be your former governmental body upon
termination of your Commonwealth employment as \[Position\] to the \[Public Official\],
\[Type of Agencies\] (i.e., those whose \[Public Officials\] are part of the \[Group\]) would be
considered to be included within the \[Divisions\]?
Brief Answer: NO. Upon termination of your Commonwealth employment, your former
governmental body would consist of the \[Entity\] in its entirety, including but not limited
to the \[Divisions\] and the \[Unit\]. \[Type of Agencies\] would not be considered to be
included within the \[Divisions\], and accordingly, they would not be part of your former
governmental body.
(2) Why would you, as a Member of the \[Governmental Unit\], be prohibited from representing
the \[Governmental Unit\] before the \[Entity\], when as a Member of the \[Governmental
Unit\], you would be an appointee to a \[Type of Body\] under the \[Public Officials\]
jurisdiction?
Brief Answer: Although the \[Public Official\] appoints the Members of the \[Governmental
Unit\], the \[Governmental Unit\] is not part of the \[Entity\]. Rather, the \[Governmental Unit\]
is housed within a separate governmental body, the \[Agency\]. Upon appointment as a
Confidential Advice, 22-547-CL
December 28, 2022
Page 2
Member of the \[Governmental Unit\], you would not once again be associated with the
\[Entity\]. You would instead be associated with a new governmental body, the \[Agency\].
Accordingly, during the first year following termination of your Commonwealth
employment, you would be prohibited from representing any part of your new
governmental body, the \[Agency\] including but not limited to the \[Governmental Unit\],
before your former governmental body, the \[Entity\].
(3) Whether the Ethics Act would prohibit you from engaging with the \[Agency\] on behalf of
a client or employer on \[Types of Matters\] (either during or after the first year after leaving
your Commonwealth employment)?
Brief Answer: The Ethics Act would not prohibit you, in a private capacity, from engaging
with the \[Agency\] on behalf of a client or employer on \[Types of Matters\] (either during
or after the first year after leaving your Commonwealth employment). However, Section
1103(a) of the Ethics Act (pertaining to conflict of interest) would prohibit you from using
the authority of your public position as a Member of the \[Governmental Unit\] or
confidential information received by holding such a public position for the private
pecuniary (financial) benefit of yourself, a member of your immediate family, or a business
with which you or a member of your immediate family is associated.
Facts:
By letter dated October 19, 2022, you initially requested a confidential advisory regarding
the post-employment restrictions of Section 1103(g) of the Ethics Act. In response to your initial
advisory request, Confidential Advice 22-547 was issued to you on November 1, 2022, which
Advice is incorporated herein by reference.
By letter dated November 28, 2022, you requested clarification as to the following issues:
(1) Whether, for purposes of determining what would be your former governmental
body upon termination of your employment as \[Position\] to the \[Public Official\],
\[Type of Agencies\] (i.e., those whose \[Public Officials\] are part of the \[Group\])
would be considered to be included within the \[Divisions\];
(2) Why would you, as a Member of the \[Governmental Unit\], be prohibited from
representing the \[Governmental Unit\] before the \[Entity\], when as a Member of the
\[Governmental Unit\], you would be an appointee to a \[Type of Body\] under the
\[Public Officials\] jurisdiction; and
(3) Whether the Ethics Act would prohibit you from engaging with the \[Agency\] on
behalf of a client or employer on \[Types of Matters\] (either during or after the first
year after leaving your Commonwealth employment).
Discussion/Conclusion:
Confidential Advice, 22-547-CL
December 28, 2022
Page 3
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.
In that Confidential Advice 22-547 is incorporated herein by reference, the submitted facts
and the quoted provisions of the Ethics Act set forth in the Advice shall not be repeated herein.
As noted in pertinent part in Confidential Advice 22-547, upon termination of your
employment as \[Position\] to the \[Public Official\], you would become a former public
official/public employee subject to the restrictions of Section 1103(g) of the Ethics Act. The
governmental body with which you would be deemed to have been associated upon termination of
your Commonwealth employment
\[Entity\] 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.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific
requests for clarification shall be addressed.
With respect to your first request for clarification, as noted above, upon termination of your
Commonwealth employment, your former governmental body would consist of the \[Entity\] in its
entirety, including but not limited to the \[Divisions\] and the \[Unit\]. \[Type of Agencies\] would not
be considered to be included within the \[Divisions\], and accordingly, they would not be part of
your former governmental body.
In response to your second request for clarification, you are advised as follows. Although
the \[Public Official\] appoints the Members of the \[Governmental Unit\], the \[Governmental Unit\]
is not part of the \[Entity\]. Rather, the \[Governmental Unit\] is housed within a separate
governmental body, the \[Agency\]. Upon appointment as a Member of the \[Governmental Unit\],
you would not once again be associated with the \[Entity\]. You would instead be associated with a
new governmental body, the \[Agency\]. Accordingly, during the first year following termination
of your Commonwealth employment, you would be prohibited from representing any part of your
new governmental body, the \[Agency\] including but not limited to the \[Governmental Unit\],
before your former governmental body, the \[Entity\].
In response to your third request for clarification, you are advised as follows. The Ethics
Act would not prohibit you, in a private capacity, from engaging with the \[Agency\] on behalf of a
client or employer on \[Types of Matters\] (either during or after the first year after leaving your
Commonwealth employment). However, Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a)
(pertaining to conflict of interest), would prohibit you from using the authority of your public
Confidential Advice, 22-547-CL
December 28, 2022
Page 4
position as a Member of the \[Governmental Unit\] or confidential information received by holding
such a public position for the private pecuniary (financial) benefit of yourself, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated.
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 \[Rules\].
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,
Martin W. Harter
Acting Chief Counsel