The URL can be used to link to this page

Home My WebLink About23-512 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: www.ethics.pa.gov TOLL FREE: 1-800-932-0936 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 16, 2023 To the Requester: 23-512 This responds to your letter dated January 18, 2023, 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 \[Position\] of the \[Governmental Entity\]. Brief Answer: YES. During the first year following termination of your employment with the \[Governmental Entity\], Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve “representation” of a “person” – including but not limited to yourself or a new employer – before your “former governmental body,” the \[Governmental Entity\]. (2) Whether Section 1103(g) of the Ethics Act would prohibit you from serving as a contractor to the \[Governmental Entity\] or as an independent consultant to the \[Governmental Entity\] to advise the \[Governmental Entity\] or its new \[Position\] on matters related to the \[Governmental Entity\]. Brief Answer: YES. Section 1103(g) of the Ethics Act would prohibit you from providing services to the \[Governmental Entity\] as a contractor or as an independent consultant as such activity would constitute prohibited representation of a person — yourself — before the \[Governmental Entity\]. Confidential Advice, 23-512 February 16, 2023 Page 2 Facts: You request aconfidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as the \[Position\] of the \[Governmental Entity\]. You have submitted a copy of a job posting for your position with the \[Governmental Entity\], which document is incorporated herein by reference. The \[Governmental Entity\], which is commonly known as \[Name\], was established pursuant to the \[Act\] in order to \[Perform a Specific Function\] beginning in the \[Season\]of \[Year\]. You were hired as the \[Governmental Entity’s\] first \[Position\] in the \[Season\] of \[Year\]. As \[Position\], you report to the \[Governmental Entity’s\] \[Governing Body\]and oversee the day-to- day management and operations of the \[Program\]. You have informed the \[Governmental Entity’s\] \[Governing Body\] of your intent to step down from your position of \[Position\] at the end of \[Month, Year\]. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you following termination of your employment with the \[Governmental Entity\]. In particular, you pose the following questions: (1) Whether, as the \[Position\]of the \[Governmental Entity\], you are an executive-level State employee, such that upon termination of your employment with the \[Governmental Entity\], you would become a former executive-level State employee subject to the two-year post-employment restrictions of Section 1103(i) of the Ethics Act; (2) Whether the one-year post-employment restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials/public employees, would prohibit you from serving as a contractor to the \[Governmental Entity\] to advise the \[Governmental Entity’s\] new \[Position\] on transition-related matters and issues facing the \[Governmental Entity\]; (3) Whether Section 1103(g) of the Ethics Act would prohibit you from working for the \[Governmental Entity\] as a contractor to advise on matters related to the \[Governmental Entity\]; and (4) Whether Section 1103(g) of the Ethics Act would impose any restrictions upon you with regard to starting your own consultancy firm and serving as an independent consultant to the \[Governmental Entity\] to advise on matters related to the \[Governmental Entity\]. Discussion: Confidential Advice, 23-512 February 16, 2023 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. Based upon the submitted facts, in your capacity as the \[Position\] of the \[Governmental Entity\], you are not an “executive-level State employee” as that term is defined by the Ethics Act. See, 65 Pa.C.S. § 1102. Accordingly, upon termination of your employment with the \[Governmental Entity\], you would not become 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. However, as the \[Position\] of the \[Governmental Entity\], you are a “public employee” as that term is defined by the Ethics Act.See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon thejob posting, which when reviewed on an objective basis, indicates clearly that the power exists 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 employment with the \[Governmental Entity\], you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. 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 (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: Confidential Advice, 23-512 February 16, 2023 Page 4 § 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 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. During the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) generally would prohibit a former public official/public employee from contracting with the former governmental body (see, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005) or providing consulting services constituting representation before the former governmental body (see, Claycomb, Opinion 14-004; Schrempf, Opinion 13-004). 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 Confidential Advice, 23-512 February 16, 2023 Page 5 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; Sharp, Opinion 90-009-R. The governmental body with which you would be deemed to have been associated upon termination of your employment with the \[Governmental Entity\] would be the \[Governmental Entity\]in its entirety. Therefore, for the first year following termination of your employmentwith the \[Governmental Entity\], Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person”— including but not limited to yourself or a new employer — before the \[Governmental Entity\]. You are advised that during the first year following termination of your employment with the \[Governmental Entity\], Section 1103(g) of the Ethics Act would prohibit you from serving as a contractor or independent consultant to the \[Governmental Entity\] to advise the \[Governmental Entity\] or its new \[Position\] on transition-related matters or any other matters as such activity would constitute prohibited representation of a person — yourself — before your former governmental body, the \[Governmental Entity\]. See, Shaub, supra; Claycomb, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. 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. Confidential Advice, 23-512 February 16, 2023 Page 6 Conclusion: As the \[Position\] of the \[Governmental Entity\], you area “public employee” subject to the Ethics Act. Upon termination of your employment with the \[Governmental Entity\], you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your employment with the \[Governmental Entity\]would be the \[Governmental Entity\]in its entirety. For the first year following termination of your employmentwith the \[Governmental Entity\], Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person”— including but not limited to yourself or anew employer — before the \[Governmental Entity\]. The restrictions as to representation outlined above must be followed. During the first year following termination of your employment with the \[Governmental Entity\], Section 1103(g) of the Ethics Act would prohibit you from serving as a contractor or independent consultant to the \[Governmental Entity\]to advise the \[Governmental Entity\]or its new \[Position\] on transition-related matters or any other matters as such activity would constitute prohibited representation of a person — yourself — before your former governmental body, the \[Governmental Entity\]. 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 receivedat 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