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HomeMy WebLinkAbout23-563 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL December 27, 2023 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.roa.Qov 23-563 This responds to your letter dated December 7, 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: Facts: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec .., would impose prohibitions or restrictions upon an individual serving as an [Officer] for the [Political Subdivision] with regard to being employed as the [Position Title] of the [Entity] following termination of her service as a [Political Subdivision Officer]. Brief Answer: YES. Although the post -termination of service/employment restrictions of Section 1103(g) of the Ethics Act would not prohibit the individual from accepting employment as the [Position Title] of the [Entity] following termination of her public service, during the first year following termination of the individual's service as a [Political Subdivision Officer], 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 [Entity] before her "former governmental body," the [Political Subdivision Governing Body]. You request a confidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. On [Date], the [Public Official] of the [Judicial Body] appointed you as an [Officer] for the [Political Subdivision] to complete the term of office of a [Political Subdivision Officer] who Confidential Advice, 23-563 December 27, 2023 Page 2 resigned to take another position with the [Political Subdivision]. Your term of office will expire in [Month, Year]. The [Political Subdivision] entered into an agreement ("the Agreement") with the [Entity] for the performance of certain [Types of Activities]. In consideration for services performed by the [Entity] under the Agreement, the [Political Subdivision] agrees to pay the [Entity] an amount not to exceed [Amount] annually. The [Entity] is to provide [Certain Information] to the [Political Subdivision] and the [Political Subdivision Governing Body]. You are interviewing with a firm for the position of [Position Title] of the [Entity]. As of [Date], you had one phone interview and two in -person interviews for the position. It is anticipated that the new [Position Title] would begin employment with the [Entity] in [Month, Year], which coincides with the expiration of your term of office as a [Political Subdivision Officer]. Based upon the above submitted facts, the following questions are posed by your advisory request: (1) Whether the post -termination of service/employment restrictions of Section 1103(g) of the Ethics Act would prohibit you from accepting the position of [Position Title] of the [Entity] if it would be offered to you; and (2) If you would not be prohibited from accepting the position of [Position Title] of the [Entity], whether the Ethics Act would impose restrictions upon you with regard to performing the duties of the position, including but not limited to holding meetings and engaging in direct correspondence. 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. As a [Political Subdivision Officer], you are a public official subject to the Ethics Act and the Regulations of the State Ethics Commission. Consequently, upon termination of your service as a [Political Subdivision Officer], you will become a "former public official" 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": Confidential Advice, 23-563 December 27, 2023 Page 3 § 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. § 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 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 "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; Confidential Advice, 23-563 December 27, 2023 Page 4 (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 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 service as a [Political Subdivision Officer] would be the [Political Subdivision Governing Body]. Therefore, for the first year following termination of your service as a [Political Subdivision Officer], Section 1103(g) of the Ethics Act would prohibit you from representing a "person" including but not limited to a new employer before the [Political Subdivision Governing Body]. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as the [Position Title] of the [Entity] following termination of your service as a [Political Subdivision Officer]. However, during the first year following termination of such service, Section 1103(g) of the Ethics Act would restrict you from performing any job duties as the [Position Title] of the Confidential Advice, 23-563 December 27, 2023 Page 5 [Entity] that would involve prohibited representation before the [Political Subdivision Governing Body]. Section 1103(g) of the Ethics Act would prohibit you from holding meetings that would include [Political Subdivision Officers] or staff of the [Political Subdivision Governing Body] or from engaging in direct correspondence with the [Political Subdivision Officers] or staff of the [Political Subdivision Governing Body], as such activities would necessarily involve prohibited representation of the [Entity] before the [Political Subdivision Governing Body]. 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: As a [Political Subdivision Officer], you are a public official subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your service as a [Political Subdivision Officer], you would become a "former public official" subject to Section 1103(g) of the Ethics Act. Your former governmental body would be the [Political Subdivision Governing Body]. For the first year following termination of your service as a [Political Subdivision Officer], Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" including but not limited to a new employer before the [Political Subdivision Governing Body]. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as the [Position Title] of the [Entity] following termination of your service as a [Political Subdivision Officer]. However, during the first year following termination of such service, Section 1103(g) of the Ethics Act would restrict you from performing any job duties as the [Position Title] of the [Entity] that would involve prohibited representation before the [Political Subdivision Governing Body]. Section 1103(g) of the Ethics Act would prohibit you from holding meetings that would include [Political Subdivision Officers] or staff of the [Political Subdivision Governing Body] or from engaging in direct correspondence with the [Political Subdivision Officers] or staff of the [Political Subdivision Governing Body], as such activities would necessarily involve prohibited representation of the [Entity] before the [Political Subdivision Governing Body]. 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 Confidential Advice, 23-563 December 27, 2023 Page 6 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