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Home My WebLink About24-571 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 November 6, 2024 To the Requester: 24-571 This responds to your letter dated October 23, 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, following termination of your employment with the \[Political Subdivision\] as the \[Position\], the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you with regard to engaging in activities as the \[Executive Position\] of an \[Entity\] controlled by the \[Political Subdivision Official\]. Brief Answer: YES. During the first year following termination of your employment with the \[Political Subdivision\], Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve “representing” a “person” — including but not limited to yourself or the \[Entity\] — before your “former governmental body,” which would consist of: \[the Political Subdivision Official’s Political Subdivision Unit and Six Other Political Subdivision Units\]. Facts: Yourequest a confidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Youare currently serving with the \[Political Subdivision\]as the \[Position\]. In that role, you work for the \[Political Subdivision Official\], \[Ms. A\], oversee various units of \[Political Subdivision\] government, and work on projects that are within the purview of \[Ms. A’s Political Subdivision Unit\]. The units of \[Political Subdivision\] government that you oversee are: \[Six Political Subdivision Units\]. Confidential Advice, 24-571 November 6, 2024 Page 2 Within the first year following termination of your service with the \[Political Subdivision\], you would like to be compensated for work that you would perform as the \[Executive Position\] of an \[Entity\] controlled by \[Ms. A\]. The \[Entity\] was the \[Type of Body\] for \[Ms. A’sType of Activity\]. As the \[Executive Position\] of the \[Entity\], you would be interacting with \[Ms. A\] in her personal capacity rather than in her capacity as the \[Political Subdivision Official\]. You would not be seeking to persuade her to take a particular position on any \[Type of Actions\] as the \[Political Subdivision Official\], and you would not represent other people before her or \[Her Political Subdivision Unit\]. Your responsibilities would include: \[Various Activities\]. You would need to speak regularly to \[Ms. A\] directly, in her personal capacity, to ensure that you are carrying out your roles and responsibilities consistent with her direction for the \[Entity\]. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to engaging in activities as the \[Executive Position\] of the \[Entity\] or in a private capacity following termination of your service with the \[Political Subdivision\]. In particular, you pose the following questions: (1) What would constitute your “former governmental body” for purposes of the post- employment restrictions of Section 1103(g) of the Ethics Act; (2) Whether you would be permitted to: (a) Call the \[Political Subdivision Official’s\] scheduling office to schedule a meeting with \[Ms. A\] for the \[Entity\]; (b) Talk to \[Ms. A\], outside of her official responsibilities as the \[Political Subdivision Official\], to schedule a meeting on matters involving the \[Entity\]; (c) Attend a private \[Type of Event\] where a \[Political Subdivision\]employee from your former governmental body would be present in a personal capacity and interact with your former coworker by discussing personal matters; (d) Attend \[Political Subdivision\] events that would be open to the general public, such as press conferences or ceremonies, and if attending such events as a private citizen, interact with former coworkers by discussing personal matters; (3) Whether you would be permitted to communicate with \[Ms. A\] by: (a) Informing her about an email received by the \[Entity\]in which a \[Political Subdivision\]resident states that they would not \[Engage in an Action\] in the future because the \[Political Subdivision\]does not \[Perform an Activity\] on time; Confidential Advice, 24-571 November 6, 2024 Page 3 (b) Informing her that a \[Type of Group\]has an interest in \[Legal Matter\] that is coming before her for \[Official Action\]; (c) Informing her in her personal capacity as to what issues a \[Type of Group\] cares about; (d) Informing her in her personal capacity that she should meet with a \[Type of Group\] to discuss some concerns it may have; (e) Presenting a memorandum to her that would summarize research of publicly available information which you would conduct to find out what issues a \[Type of Group\] cares about; (f) Presenting a memorandum to her that would summarize your telephone call with a \[Type of Group\] with respect to what issues the \[Type of Group\] cares about; and (g) Receiving telephone calls from her in which she would ask you to find out what issues are important in the \[Political Subdivision\] or important to a \[Type of Group\]; (4) Whether you would be permitted to go to dinner with a former colleague who used to report to you and discuss issues occurring in the \[Political Subdivision\] and provide advice as a mentor; and (5) Whether you would be permitted to inform someone in your former governmental body that the \[Political Subdivision\] is consistently late in \[Performing an Activity\]. 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. The post-employment restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees. 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 Confidential Advice, 24-571 November 6, 2024 Page 4 (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 “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 Confidential Advice, 24-571 November 6, 2024 Page 5 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 Commission has long recognized that the purpose of Section 1103(g) is to “protect the public trust, such that a public official/employee … upon leaving public service, may not utilize his association with the public sector, officials or employees to secure treatment or benefits for himself or his new employer that may only be obtainable because of his association with his former governmental body.” Shay, Opinion 91-012, at 3. Section 1103(g) prohibits “revolving door” conduct such that during the first year following termination of public service, a former public official/public employee may not capitalize on his prior public service by using his connections/influence with his former governmental body to affect governmental actions for the benefit of “persons,” including himselfor his new employeror clients. See, Gagliardo, Order 1369; Confidential Opinion, 97-008. Conclusion: As the \[Political Subdivision’s\] \[Position\], 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. Consequently, upon termination of your employment with the \[Political Subdivision\], 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 \[Political Subdivision\], hereinafter collectively Confidential Advice, 24-571 November 6, 2024 Page 6 referred to as “your former governmental body,” would consist of: \[the Political Subdivision Official’s Political Subdivision Unit and Six Other Political Subdivision Units\]. Therefore, for the first year following termination of your employmentwith the \[Political Subdivision\], Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” — including but not limited to yourself or the \[Entity\] — before your former governmental body. The restrictions as to representation outlined above must be followed. Having established the above general principles, your specific questions shall now be considered. Your first question has been addressed above. Turning to your second, third, and fourth questions, you are advised as follows. In performing activities as the \[Executive Position\] of the \[Entity\], you would be “representing” the \[Entity\]. The issue is thus whether the activities you propose to engage in would constitute representing the \[Entity\] on a matter before your former governmental body in contravention of Section 1103(g) of the Ethics Act. Given that the \[Entity\] is controlled by \[Ms. A\] in a personal capacity rather than in her capacity as the \[Political Subdivision Official\], activity that you would engage in that would involve interaction with \[Ms. A\]in her personal capacity as the controller of the \[Entity\] would not constitute prohibited representation before your former governmental body. Additionally, activity that you would engage in that would involve interaction with your former governmental body but that would not constitute an attempt to influence your former governmental body to act for the benefit of the \[Entity\]would not be considered prohibited representation of the \[Entity\] before your former governmental body. With regard to your second, third, and fourth questions, you are advised that Section 1103(g) would not prohibit you from: Calling the \[Political Subdivision Official’s\] scheduling office to schedule a meeting with \[Ms. A\] for the \[Entity\]; Talking to \[Ms. A\], outside of her official responsibilities as the \[Political Subdivision Official\], to schedule a meeting on matters involving the \[Entity\]; Informing \[Ms. A\] about an email received by the \[Entity\] in which a \[Political Subdivision\]resident states that they would not \[Engage in an Action\] in the future because the \[Political Subdivision\]does not \[Perform an Activity\]on time; Informing \[Ms. A\] that a \[Type of Group\]has an interest in \[Legal Matter\] that is coming before her for \[Official Action\]; Informing \[Ms. A\] in her personal capacity as to what issues a \[Type of Group\] cares about; Confidential Advice, 24-571 November 6, 2024 Page 7 Informing \[Ms. A\] in her personal capacity that she should meet with a \[Type of Group\] to discuss some concerns it may have; Presenting a memorandum to \[Ms. A\] that would summarize research of publicly availableinformation which you would conduct to find out what issues a \[Type of Group\] cares about; Presenting a memorandum to \[Ms. A\] that would summarize your telephone call with a \[Type of Group\] with respect to what issues the \[Type of Group\] cares about; or Receiving telephone calls from \[Ms. A\]in which she would ask you to find out what issues are important in the \[Political Subdivision\] or important to a \[Type of Group\], as none of these activities would constitute an attempt to influence your former governmental body to act for the benefit of the \[Entity\]. You are further advised that Section 1103(g) would not prohibit you from: Attending a private \[Type of Event\] where a \[Political Subdivision\] employee from your former governmental body would be present in a personal capacity and interacting with your former coworker by discussing personal matters; Attending \[Political Subdivision\]events that would be open to the general public, such as press conferences or ceremonies, and if attending such events as a private citizen, interacting with former coworkers by discussing personal matters; or Going to dinner with a former colleague who used to report to you and discussing issues occurring in the \[Political Subdivision\] and providing advice as a mentor, as long asin so doing, you would not engage in conduct that would constitute prohibited representation of the \[Entity\] before your former governmental body as delineated above. See, Conti, Opinion 07-007. In response to your fifth question, you are advised that Section 1103(g) would not prohibit you from informing someone in your former governmental body that the \[Political Subdivision\] is consistently late in \[Performing an Activity\]. 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. 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 Confidential Advice, 24-571 November 6, 2024 Page 8 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