HomeMy WebLinkAbout23-500 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
January 3, 2023
To the Requester:
23-500
This responds to your letter dated November 25, 2022, received December 2, 2022, by
which you requested a confidential advisory from the Pennsylvania State Ethics Commission
(Commission), seeking guidance as to the issues presented below:
Issues:
(1) Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et
seq., would impose restrictions upon you following termination of your employment as the
\[Position\] for the \[Office\] within the \[Governmental Body\].
Brief Answer: YES. During the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would apply and restrict you from engaging
in any activity that including but not limited
to a new employer or a business before which would
include: (1) the \[Divisions\]; and (2) the \[Governmental Body\] in its entirety.
(2) Whether Section 1103(g) of the Ethics Act would prohibit you from serving as a Member
of \[Entity 1s\] \[Board\].
Brief Answer: NO. Section 1103(g) of the Ethics Act would not prohibit you from serving
as a Member of \[Entity 1s\] \[Board\] subject to the condition that in so doing, you would
not engage in any activity that would constitute representation of \[Entity 1\] or its \[Board\]
before your former governmental body.
Facts:
Confidential Advice, 23-500
January 3, 2023
Page 2
You request a confidential advisory from the Commission based upon submitted facts that
may be fairly summarized as follows.
You recently retired from your employment as the \[Position\] for the \[Office\] within the
\[Governmental Body\]. You have submitted a copy of your official Commonwealth position
document is incorporated herein by reference. The
Position Description lists your job title as \[Title\] and your department as the \[Divisions\]. A copy
of the job classification specifications for the position of \[Title\] (job code \[number\]) has been
obtained and is also incorporated herein by reference.
In your former Commonwealth position, you were the \[Type of Position\] for the \[Unit\].
You worked under \[Public Official/Public Employee 1\], who in turn reported to \[Public
Official/Public Employee 2\]. You led a team that included Commonwealth employees as well as
Commonwealth contractors/staff augmentation positions. You did not serve on any commissions,
committees, councils, or boards of the Commonwealth as an employee, member/appointee, or
designee. While you were a Commonwealth employee, you established relationships with staff of
\[Entity 1\] who collaborated with the \[Governmental Body\] on \[Types of Events\].
On \[Date\], you began employment in the private sector with \[the Firm\], which does not
have a contract with the Commonwealth. Some of \[the Firms\] services and products are at times
purchased by governmental agencies or partnerships between various parties which may include
governmental agencies. \[The Firms\] customers and clients include a myriad of governmental
organizations within \[Various Geographical Locations, Including Pennsylvania\].
Before you retired from your Commonwealth employment, you received some guidance
from the \[Governmental Body\] with regard to the post-employment restrictions of the Ethics Act.
You state that the \[Governmental Body\] indicated, in pertinent part, that: (1) for one year after
leaving public service or employment, you may not
before the governmental body with which you were associated; (2) under the Ethics Act, to
n behalf of another person in any activity, including
personal appearances, negotiations, lobbying, and submitting bid or contract proposals containing
your signature or name; (3) a separate two-year restriction on engaging in certain activities applies
to former executive-level State employees; (4) based upon a review of Ethics Commission rulings,
the governmental body with which you were associated would consist of the \[Governmental
Body\], including the \[Office\] and the \[Unit\], and any commissions, committees, councils, and
boards on which you served as an employee, member/appointee, or designee; (5) although you
may not lobby your former governmental body, negotiate with your former governmental body,
or sign your name to any communications with or bid proposals submitted to your former
governmental body, you may assist in the preparation of documents to be presented to your former
governmental body; and (6) you may request an advisory opinion from the Ethics Commission
regarding your particular obligations under the Ethics Act.
Based upon the above submitted facts, you pose the following questions:
Confidential Advice, 23-500
January 3, 2023
Page 3
(1) Whether the description of the post-employment restrictions of the Ethics Act that
was provided to you by the \[Governmental Body\] is correct and comprehensive,
and whether there is any additional information that you should know;
(2) Whether your former governmental body is limited to the entities named by the
\[Governmental Body\], or whether your former governmental body would include
any other Commonwealth agencies or entities such as agencies that utilize their
own \[Resources\] over which the \[Governmental Body\] has no oversight (such as
\[Specific Agencies\]) or independent agencies that utilize the \[Governmental
Bodys\] \[Type of Services\] (such as \[Independent Agency 1\] or \[Independent
Agency 2\]);
(3) Whether you are subject to the two-year restrictions of the Ethics Act that apply to
former executive-level State employees in addition to being subject to the one-year
post-employment restrictions of the Ethics Act;
(4) Whether you would be permitted to serve as a Member of \[Entity 1s\] \[Board\]; and
(5) Whether there is any other advice and guidance that would be of value to you
regarding your recent change in employment.
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.
During your employment as the \[Position\] for the \[Office\] within the \[Governmental
Body\], you were a t to the Ethics Act and the 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 and the job classification specifications, which when reviewed on an
objective basis, indicate clearly that the power existed 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 Commonwealth employment, you became a
former public employee subject to Section 1103(g) of the Ethics Act.
Confidential Advice, 23-500
January 3, 2023
Page 4
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
§ 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.
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.
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.
Confidential Advice, 23-500
January 3, 2023
Page 5
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; and (5) lobbying. Popovich, Opinion 89-005.
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
is not restricted as to representation before other agencies or entitie
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 Commonwealth employment, hereinafter collectively referred to as your
s: (1) the \[Divisions\]; and (2) the \[Governmental Body\] in
its entirety, including but not limited to the \[Office\]. Therefore, for the first year following
Confidential Advice, 23-500
January 3, 2023
Page 6
termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply
including but not limited to your new employer, \[the
Firm\] before your former governmental body.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific
questions shall now be considered.
Your first and fifth questions are general and have been addressed above to the extent that
they can be addressed in an advisory.
In response to your second question, you are advised as follows. Your former
governmental body would not include Commonwealth agencies or entities that are not part of the
\[Divisions\] or the \[Governmental Body\]. Accordingly, your former governmental body would not
include agencies that utilize their own \[Resources\] over which the \[Governmental Body\] has no
oversight (such as \[Specific Agencies\]) or independent agencies that utilize the \[Governmental
Bodys\] \[Type of Services\] (such as \[Independent Agency 1\] or \[Independent Agency 2\]).
Therefore, Section 1103(g) of the Ethics Act would not prohibit you from working with agencies
or entities that are not part of the \[Divisions\] or the \[Governmental Body\], such as agencies that
utilize their own \[Resources\] over which the \[Governmental Body\] has no oversight or
independent agencies that utilize the \[Governmental Bodys\] \[Type of Services\].
With regard to your third question, you are advised as follows. Based upon the submitted
facts, during your employment as the \[Position\] for the \[Office\] within the \[Governmental Body\],
-See,
65 Pa.C.S. § 1102. Accordingly, you are not subject to the two-year post-employment restrictions
of Section 1103(i) of the Ethics Act, which apply only to former executive-level State employees.
In response to your fourth question, you are advised that Section 1103(g) of the Ethics Act
would not prohibit you from serving as a Member of \[Entity 1s\] \[Board\] subject to the condition
that in so doing, you would not engage in any activity that would constitute representation of
\[Entity 1\] or its \[Board\] before your former governmental body. (It is noted that \[Entity 1\] is a
, cf., \[Cite\], and it
purposes of the restrictions of Section 1103(g) of the Ethics Act.)
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:
During your employment as the \[Position\] for the \[Office\] within the \[Governmental
Body\], you were a
Ethics Commission. Upon termination of your Commonwealth employment, you became a
former public employee subject to Section 1103(g) of the Ethics Act. The governmental body
with which you are deemed to have been associated upon termination of your Commonwealth
Confidential Advice, 23-500
January 3, 2023
Page 7
(1) the \[Divisions\]; and (2) the \[Governmental Body\] in its entirety, including but not limited to
the \[Office\]. For the first year following termination of your Commonwealth employment, Section
including but
not limited to your new employer, \[the Firm\] before your former governmental body. The
restrictions as to representation outlined above must be followed. Lastly, the propriety of the
proposed conduct has only been addressed under 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