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HomeMy WebLinkAbout23-548 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 August 15, 2023 To the Requester: 23-548 This responds to your letter dated July 21, 2023, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon an individual with regard to performing work for his new employers, \[Entity 1\]and \[Entity 2\], following termination of his employment as a \[Public Position\] with \[Commonwealth Body 1\]. Brief Answer: YES. During the first year following termination of the individual’s Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict the individual from engaging in any activity that would involve “representation” of a “person” — including but not limited to his new employers, \[Entity 1\] and \[Entity 2\] — before his “former governmental body,” which consists of \[Commonwealth Body 1\]. Facts: You have been authorized by \[the Individual\] to request a confidential advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. \[The Individual\] is employed as the \[Position Title\] of \[Entity 1\], which is a 501(c)(3) corporation. \[The Individual\] is also employed as the \[Position Title\] of \[Entity 2\]. \[The Individual’s\] employment with both entities commenced on \[Date\]. Both entities \[Engage in a Particular Activity\]. Confidential Advice, 23-548 August 15, 2023 Page 2 \[The Individual\]was previously employed with \[Commonwealth Body 1\]as the \[Public Position\] for the \[Unit\]. \[The Individual’s\] employment with \[Commonwealth Body 1\]ended on \[Date\]. As to both \[Entity 1\]and \[Entity 2\], \[the Individual\] or his staff will be required to engage in the following activities: (1) informing and advising \[Public Officials\] of \[Commonwealth Body 1\], \[Public Officials\] of \[Commonwealth Body 2\], and officials/employees of the \[Commonwealth Department\] or other entities within the executive branch of the Commonwealth government (“the Executive Branch”) about ongoing \[Type of Programs\] within \[a Geographical Area\]; (2) advocating on behalf of such programs by communicating directly with \[Public Officials\]of \[Commonwealth Body 1\], \[Public Officials\]of \[Commonwealth Body 2\], and officials/employees of the Executive Branch; and (3) inviting \[Public Officials\]of \[Commonwealth Body 1\], \[Public Officials\] of \[Commonwealth Body 2\], and officials/employees of the Executive Branch to \[Types of Events\]. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon \[the Individual\] during the first year following termination of his employment with \[Commonwealth Body 1\]. In particular, you pose the following questions: (1) Whether \[the Individual\] would be prohibited from engaging in the activities set forth above; (2) Whether \[the Individual’s\]staff would be prohibited from engaging in the activities set forth above under his direction and supervision; (3) If \[the Individual\] would be prohibited from communicating individually with \[Public Officials\] of \[Commonwealth Body 1\], \[Public Officials\]of \[Commonwealth Body 2\], or officials/employees of the Executive Branch, whether \[the Individual\] would also be prohibited from making introductory comments; (4) Whether \[the Individual\] would be permitted to attend events where \[Public Officials\] of \[Commonwealth Body 1\], \[Public Officials\] of \[Commonwealth Body 2\], or officials/employees of the Executive Branch would be present as long as he would not engage in any direct lobbying or advocacy; and (5) Whether \[the Individual\] would be permitted to maintain personal relationships that he developed while working for \[Commonwealth Body 1\] as long as in so doing, he would not engage in any activity on behalf of \[Entity 1\]or \[Entity 2\]. 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 Confidential Advice, 23-548 August 15, 2023 Page 3 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. As the submitted facts do not include a position description for \[the Individual’s\]former position with \[Commonwealth Body 1\], this Advice assumes, without deciding, that during \[the Individual’s\] employment with \[Commonwealth Body 1\] as the \[Public Position\] for the \[Unit\], \[the Individual\] was considered a “public employee” subject to 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 \[the Individual’s\] Commonwealth employment, \[the Individual\] became 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: § 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 Confidential Advice, 23-548 August 15, 2023 Page 4 the public official or employee is or has been appointed or elected and subdivisions and offices within thatgovernmental 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 anyactivity. 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; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89 -005, Edley, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. 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 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 mayalso 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 Confidential Advice, 23-548 August 15, 2023 Page 5 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 \[the Individual\]is deemed to have been associated upon termination of his Commonwealth employment is\[Commonwealth Body 1\]in its entirety. Therefore, for the first year following termination of \[the Individual’s\] Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict\[the Individual\]from engaging in any activity that would involve“representation” of a “person” — including but not limited to \[Entity 1\] and \[Entity 2\] — before \[Commonwealth Body 1\]. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first question, you are advised as follows. During the first year following termination of \[the Individual’s\] Commonwealth employment, Section 1103(g) of the Ethics Act would restrict \[the Individual\]from: (1) informing and advising \[Public Officials\] of \[Commonwealth Body 1\]about ongoing \[Type of Programs\] within\[a Geographical Area\]; (2) advocating on behalf of such programs by communicating directly with \[Public Officials\]of \[Commonwealth Body 1\]; or (3) inviting \[Public Officials\]of \[Commonwealth Body 1\] to \[Types of Events\], as such activities would necessarily involve prohibited representation before \[Commonwealth Body 1\]. Section 1103(g) would not prohibit \[the Individual\] from engaging in the aforesaid enumerated activities with respect to \[Public Officials\] of \[Commonwealth Body 2\] or officials/employees of the Executive Branch. With respect to your second question, you are advised that \[the Individual’s\] staff would not be prohibited from engaging in the aforementioned enumerated activities under \[the Individual’s\] supervision and direction. However, in supervising and directing his staff with respect to such activities, \[the Individual\] would need to exercise caution to ensure that he would not engage in prohibited representation before \[Commonwealth Body 1\]. As to your third question, you are advised that Section 1103(g) of the Ethics Act would restrict \[the Individual\] from making introductory comments before \[Public Officials\]of \[Commonwealth Body 1\] as a body or before a group of officials/employees that would include any \[Public Officials\] or employees of \[Commonwealth Body 1\]. Section 1103(g) would not restrict \[the Individual\]from making introductory comments before \[Public Officials\]of \[Commonwealth Body 2\] or officials/employees of the Executive Branch as long as in so doing, he would not engage in prohibited representation before \[Commonwealth Body 1\]. In response to your fourth question, you are advised as follows. To the extent that \[the Individual\], as the \[Position Title\] of \[Entity 1\] or as the \[Position Title\] of \[Entity 2\], would attend an event where one or more \[Public Officials\] of \[Commonwealth Body 1\] would be present, \[the Individual\] would be representing \[Entity 1\] or \[Entity 2\] before the other attendees of the event, regardless of whether he would not engage in any direct lobbying or advocacy at the event. Accordingly, during the first year following termination of \[the Confidential Advice, 23-548 August 15, 2023 Page 6 Individual’s\] Commonwealth employment, Section 1103(g) of the Ethics Act would restrict \[the Individual\] from attending any event that would include a \[Public Official\] of \[Commonwealth Body 1\], as such activity would necessarily involve prohibited representation before \[the Individual’s\] former governmental body, \[Commonwealth Body 1\]. Section 1103(g) would not restrict \[the Individual\] from attending an event where \[Public Officials\] of \[Commonwealth Body 2\] or officials/employees of the Executive Branch would be present (and no \[Public Official\] of \[Commonwealth Body 1\] would be present) or from engaging in direct lobbying or advocacy at such an event. With respect to your fifth question, you are advised that Section 1103(g) of the Ethics Act would not restrict \[the Individual\] from having social contact with friends or former coworkers serving in or employed with \[Commonwealth Body 1\] as long as in so doing, he would not engage in conduct that would constitute prohibited representation of \[Entity 1\] or \[Entity 2\]. 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: This Advice assumes, without deciding, that during \[the Individual’s\] employment with \[Commonwealth Body 1\] as the \[Public Position\] for the \[Unit\], \[the Individual\]was considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of \[the Individual’s\] Commonwealth employment, \[the Individual\] became a “former public employee” subject to Section 1103(g) of the Ethics Act. \[The Individual’s\] former governmental body is \[Commonwealth Body 1\] in its entirety. For the first year following termination of \[the Individual’s\] Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict \[the Individual\] from engaging in any activity that would involve “representation” of a “person” — including but not limited to \[the Individual’s\] new employers, \[Entity 1\] and \[Entity 2\] — before \[Commonwealth Body 1\]. 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. 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 Confidential Advice, 23-548 August 15, 2023 Page 7 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