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Home My WebLink About25-505 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 February 11, 2025 To the Requester: 25-505 This responds to your letter dated January 31, 2025, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a state legislator with regard to accepting employment as a \[Type of Specialist\] to a business entity that engages in business in \[a Geographical Area\]. Brief Answer: Section 1103(a) of the Ethics Act (pertaining to public officials/public employees and conflict of interest) would not prohibit the state legislator from accepting employment with or providing \[Type of Specialist\] services to the business entity in his private capacity. Pursuant to Section 1103(a) of the Ethics Act, in his capacity as a public official, the state legislator generally would be prohibited from using the authority of his public position to effectuate a private pecuniary (financial) benefit to himself or the business entity, which would be considered a business with which the state legislator is associated. However, Section 1103(a) of the Ethics Act would not apply to the state legislator insofar as his activities would constitute “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation). Facts: Confidential Advice, 25-505 February 11, 2025 Page 2 You request a confidential advisory from the Commission on behalf of a Pennsylvania State Legislator (“the State Legislator”). You have submitted facts that may be fairly summarized as follows. The State Legislator has been presented with an opportunity for employment as a \[Type of Specialist\] to a business entity (“the Business Entity”) that engages in business in \[a Geographical Area\]. The State Legislator’s employment position would involve working with the Business Entity to \[Achieve Certain Goals\]for the Business Entity for its work in the \[Geographical Area\]. The State Legislator would receive compensation for his \[Type of Specialist\]work. The State Legislator would not engage in lobbying under the Lobbying Disclosure Law in Pennsylvania or the \[Geographical Area\] in the provision of his \[Type of Specialist\] services to the Business Entity. The question posed by your advisory request is whether the Ethics Act would impose any prohibitions or restrictions upon the State Legislator with regard to accepting employment as a \[Type of Specialist\] to the Business Entity. Discussion: 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 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 material facts. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions “Conflict” or “conflict of interest.” Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business Confidential Advice, 25-505 February 11, 2025 Page 3 with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. “Authority of office or employment.” The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. “Business.” Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. “Business with which he is associated.”Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary (financial) benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: … must act in such a way as to put his \[office/public position\] to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public official/public employee “must be consciously aware of a private pecuniary benefit for himself, his family, or his business, and then must take action in the form of one or more specific steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231. Confidential Advice, 25-505 February 11, 2025 Page 4 To the extent the activities of a state legislator relate to “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the Commission. See, Mann, Opinion 07-005; Confidential Opinion, 05-002; Corrigan, Opinion 87-001. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. In his capacity as a Member of the \[Chamber of the Pennsylvania General Assembly\], the State Legislator is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon the State Legislator in his capacity as a public official, rather than upon him in his private capacity. Therefore, Section 1103(a) would not prohibit the State Legislator, in his private capacity, from accepting employment with and providing \[Type of Specialist\] services to the Business Entity. If the State Legislator would accept the proposed position of employment with the Business Entity, the Business Entity would be considered a business with which the State Legislator is associated. Pursuant to Section 1103(a) of the Ethics Act, in his public capacity as a Member of the \[Chamber of the Pennsylvania General Assembly\], the State Legislator generally would be prohibited from using the authority of hispublic position to effectuate a private pecuniary (financial) benefit to himself or the Business Entity. However, Section 1103(a) of the Ethics Act would not apply to the State Legislator insofar as his activities would constitute legislative actions. Section 1103(a) of the Ethics Act would prohibit the State Legislator from using his status as a state legislator in furtherance of the Business Entity’s business interests. See, Confidential Opinion, 05-002; Confidential Opinion, 05-009. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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,25-505 February 11, 2025 Page 5 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