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HomeMy WebLinkAbout23-524 HagartyPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Eric Hagarty Dear Mr. Hagarty: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL May 4, 2023 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 23-524 This responds to your letter dated March 27, 2023, received April 10, 2023, 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 sec .., would impose any prohibitions or restrictions upon you following your service as the Acting Secretary of Education for the Commonwealth of Pennsylvania ("Acting Secretary of Education"). Brief Answer: YES. During the first year following termination of your employment as the Acting Secretary of Education, 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 Pennsylvania Department of Education in its entirety, the Pennsylvania State Board of Education in its entirety, and any committees or other governmental bodies on which you served in your official capacity, except for those bodies whose members are not considered public officials subject to the Ethics Act. For a period of two years following termination of your Commonwealth employment as the Acting Secretary of Education, Section 1103(i) of the Ethics Act would restrict you Ha a M , 23-524 May 4, 2023 Page 2 from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business that you actively participated in recruiting to the Commonwealth or actively participated in inducing to open or expand a plant, facility, or branch in the Commonwealth through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You recently ended eight years of service as a Commonwealth employee. During those eight years, you served as: (1) Chief of Staff of the Pennsylvania Department of Community and Economic Development from January 20, 2015 to March 4, 2016; (2) Deputy Chief of Staff to Governor Tom Wolf from March 5, 2016 to April 29, 2022; and (3) Acting Secretary of Education from April 30, 2022 to January 17, 2023. As the Acting Secretary of Education, you were head of the Pennsylvania Department of Education. See, 71 P.S. § 66. By virtue of your position as the Acting Secretary of Education, you served as the Chief Executive Officer of the Pennsylvania State Board of Education. 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, the following questions are posed by your advisory request: (1) Whether you would be prohibited from representing any person on any matter before the Pennsylvania Department of Education or the Pennsylvania State Board of Education until January 17, 2024 (one year following termination of your Commonwealth employment as the Acting Secretary of Education); (2) Whether you would be prohibited from representing any person on any matter before the Pennsylvania Department of Community and Economic Development; (3) Whether you would be prohibited from representing any person on any matter before any executive agencies other than the Pennsylvania Department of Education; (4) Whether you would be prohibited from representing any person on any matter before Members of the General Assembly or the various committees comprised within the General Assembly; (5) Whether you would be prohibited from representing any person on any matter before school district employees or school board representatives; Ha a L , 23-524 May 4, 2023 Page 3 (6) Whether you would be prohibited from representing any person on any matter before a financial recovery school district's chief recovery officer; and (7) Whether you would be prohibited from representing any person on any matter before a financial recovery school district's court -appointed receiver. Although you posed an additional question as to whether you would be prohibited from representing any person on any matter before the Office of the Governor until April 29, 2023 (one year following termination of your service as Deputy Chief of Staff to Governor Tom Wolf), that question shall not be addressed as it is moot. In this respect, it is noted that the restrictions of Section 1103(g) of the Ethics Act, which prohibit a former public official/public employee from engaging in representation before his former governmental body, apply to the former public official/public employee for one year following termination of service in the public position. Given that your service in the position of Deputy Chief of Staff to Governor Tom Wolf terminated more than one year ago, this Advice need not address any applicability of the Section 1103(g) restrictions to you with regard to that position. 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 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. During your employment as the Acting Secretary of Education, you were 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 employment as the Acting Secretary of Education, you became 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 Ha a L , 23-524 May 4, 2023 Page 4 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 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. Ha a L , 23-524 May 4, 2023 Page 5 "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. 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 Ha a L , 23-524 May 4, 2023 Page 6 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 are deemed to have been associated upon termination of your employment as the Acting Secretary of Education, hereinafter collectively referred to as "your former governmental body," is the Pennsylvania Department of Education in its entirety, the Pennsylvania State Board of Education in its entirety, and any committees or other governmental bodies on which you served in your official capacity, except for those bodies whose members are not considered public officials subject to the Ethics Act. Cf., Hafer, Opinion 04-016. Therefore, for a period of one year following termination of your employment as the Acting Secretary of Education, Section 1103(g) of the Ethics Act would apply and restrict you from representing a "person" on any matter before your former governmental body as delineated above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be considered. Your first question has been addressed above. In response to your second, third, fourth, and fifth questions, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from representing a person on a matter before: (1) the Pennsylvania Department of Community and Economic Development; (2) executive agencies not included within your former governmental body as set forth above; (3) Members of the General Assembly or the various committees comprised within the General Assembly; or (4) school district employees or school board representatives, subj ect to the condition that in performing such activity(ies), you would not engage in prohibited representation before your former governmental body as set forth above. With respect to your sixth question, you are advised as follows. Given that a chief recovery officer for a financial recovery school district is appointed by the Secretary of Education (see, 24 P.S. § 6-631-A) and receives a salary from the Pennsylvania Department of Education (see, 24 P.S. § 6-632-A), a chief recovery officer would be considered to be part of the Pennsylvania Department of Education. As such, a chief recovery officer would be included within your former governmental body. Accordingly, during the first year following termination of your employment as the Acting Secretary of Education, Section 1103(g) of the Ethics Act would prohibit you from representing a person before a chief recovery officer for a financial recovery school district. Ha a L , 23-524 May 4, 2023 Page 7 Turning to your seventh question, you are advised as follows. Because a receiver for a financial recovery school district is appointed by a court of common pleas rather than by the Secretary of Education and is compensated pursuant to a contract between the receiver and the Pennsylvania Department of Education (see, 24 P.S. § 6-671-A), a receiver would not be considered to be part of the Pennsylvania Department of Education. Accordingly, Section 1103(g) of the Ethics Act would not prohibit you from representing a person on a matter before a receiver for a financial recovery school district subject to the condition that in performing such activity, you would not engage in prohibited representation before your former governmental body as delineated above. Conclusion: During your employment as the Acting Secretary of Education, you were 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 sec ., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec .. Upon termination of your employment as the Acting Secretary of Education, you became 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. The governmental body with which you are deemed to have been associated upon termination of your employment as the Acting Secretary of Education, hereinafter collectively referred to as "your former governmental body," is the Pennsylvania Department of Education in its entirety, the Pennsylvania State Board of Education in its entirety, and any committees or other governmental bodies on which you served in your official capacity, except for those bodies whose members are not considered public officials subject to the Ethics Act. For the first year following termination of your employment as the Acting Secretary of Education, Section 1103(g) of the Ethics Act would apply and restrict you from representing a "person" before your former governmental body as delineated above. The restrictions as to representation outlined above must be followed. 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. Ha a l , 23-524 May 4, 2023 Page 8 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