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Home My WebLink About24-545 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 June 11, 2024 To the Requester: 24-545 This responds to your submission received June 6, 2024, 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 you with regard to performing work for a new employer following termination of your employment as a \[Job Title\]with the \[Commonwealth Department\], in which capacity you serve as the \[Role\] for the \[Office\]. Brief Answer: YES. During the first year following termination of your employment with the \[Commonwealth Department\], 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 a new employer — before your “former governmental body,” which would consist of the \[Commonwealth Department\] in its entirety, including the \[Office\]. Facts: You request a confidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a \[Job Title\]with the \[Commonwealth Department\], in which capacity you serve as the \[Role\]for the \[Office\]. You have submitted a copy of a position description for the position of \[Job Title\], which document is incorporated herein by reference. Confidential Advice, 24-545 June 11, 2024 Page 2 In your role with the \[Commonwealth Department\], you \[Perform Various Job Functions Involving Work Conducted in Partnership With Other State Entities and External Partners\]. You have been approached by a business (“the Business”), and you expect to be offered a position as the Business’ \[Position Title\], in which capacity you would be responsible for \[Performing a Certain Activity\]. You would be tasked with \[Achieving Certain Goals\], and you would do so by working in partnership with the \[Office\] and other entities within the \[Commonwealth Department\], \[Particular Partners\] and \[Other Entities\]. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to accepting employment as the Business’ \[Position Title\]. 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. As a \[Job Title\] with the \[Commonwealth Department\], you are 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. This conclusion is based upon the position description, 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 \[Commonwealth Department\], 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 Confidential Advice, 24-545 June 11, 2024 Page 3 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 “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 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, 24-545 June 11, 2024 Page 4 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 \[Commonwealth Department\] would be the \[Commonwealth Department\] in its entirety, including but not limited to the \[Office\]. Therefore, for the first year following termination of your employmentwith the \[Commonwealth Department\], 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 \[Commonwealth Department\]. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Business as its \[Position Title\]. However, during the first year following termination of your employment with the \[Commonwealth Department\], Section 1103(g) of the Ethics Act would prohibit you from performing any job duties for the Business that would involve prohibited representation of the Business before the \[Commonwealth Department\] as delineated above. 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, 24-545 June 11, 2024 Page 5 Conclusion: Asa \[Job Title\]with the \[Commonwealth Department\], you are a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your employmentwiththe \[Commonwealth Department\], 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 \[Commonwealth Department\]would be the \[Commonwealth Department\]in its entirety, including the \[Office\]. For the first year following termination of your employmentwith the \[Commonwealth Department\], 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 \[Commonwealth Department\]. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Business as its \[Position Title\]. However, during the first year following termination of your employment with the \[Commonwealth Department\], Section 1103(g) of the Ethics Act would prohibit you from performing any job duties for the Business that would involve prohibited representation of the Business before the \[Commonwealth Department\]as delineated above. 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 civilor 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 appealmust 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