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HomeMy WebLinkAbout25-529 Strathmeyer 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 9, 2025 To the Requester: Fred R. Strathmeyer, Jr. 25-529 Dear Mr. Strathmeyer: This responds to your letter received June 2, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon you following termination of your employment as the Deputy Secretary for Plant Industry and Consumer Protection for the Pennsylvania Department of Agriculture (“Department of Agriculture”). Brief Answer: YES. As a former public official/public employee, during the first year following termination of your Commonwealth employment, 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 consists of: (1) the Department of Agriculture in its entirety; (2) the Pennsylvania Gaming Control Boardin its entirety; and (3) any committees, boards, or other governmental bodies on which you served in your official capacity, except for those bodies whose members are not considered public officials subject to the Ethics Act. As a former executive-level State employee, for a period of two years following termination of yourCommonwealth employment, Section 1103(i) of the Ethics Act would Strathmeyer, 25-529 June 9, 2025 Page 2 restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business that you actively participated in recruiting to the Commonwealth or actively participated ininducing to open or expand a plant, facility, or branch in the Commonwealth through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. On May 30, 2025, your employment as the Deputy Secretary for Plant Industry and Consumer Protection for the Department of Agriculture ended. In your role with the Department of Agriculture you oversaw or worked with various governmental entities within the Department of Agriculture, including the Bureau of Plant Industry, the Bureau of Dog Law Enforcement, the Bureau of Ride and Measurement Standards, the Hardwoods Development Council, and the Horse Racing Commission. You also sat as the alternate for the Secretary of Agriculture on various boards, commissions, and councils, including the Pennsylvania Gaming Control Board. As a result of your service on the Pennsylvania Gaming Control Board, you were prohibited from gambling in any casinos in Pennsylvania. Effective June 2, 2025, you began employment as the Executive Director of the Pennsylvania Forest Products Association. The performance of your duties in your position with the Pennsylvania Forest Products Association will require you to interact with the Pennsylvania legislature. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you following termination of your Commonwealth employment. In particular, you pose the following questions: (1) Whether the post-employment restrictions of Section 1103(g) of the Ethics Act would prohibit you from engaging in activity related to the Department of Agriculture for one year following termination of your Commonwealth employment; (2) Whether there would be any restrictions upon you with regard to interacting with the Pennsylvania legislature or the executive branch of the Commonwealth government; (3) Whether there would be any restrictions upon you with regard to contacting associates at universities and colleges in Pennsylvania with whom you interacted during your Commonwealth employment; and (4) Whether there would be any restrictions upon you with regard to engaging in gaming activity. Strathmeyer, 25-529 June 9, 2025 Page 3 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 Ethics Act imposes post-employment restrictions upon both former public officials/public employees and former executive-level State employees. The post-employment restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees, while the post-employment restrictions of Section 1103(i) of the Ethics Act apply to former executive-level State employees. Section 1103(g) of the Ethics Act does not prohibit a former public official/public employee from accepting a position of employment. However, 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 following terms related to Section 1103(g) are 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. Strathmeyer, 25-529 June 9, 2025 Page 4 “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 employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term "representation" 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 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 the 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 Strathmeyer, 25-529 June 9, 2025 Page 5 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. Section 1103(i) of the Ethics Act restricts former executive-level State employees as follows: § 1103. Restricted activities (i) Former executive-level employee.--No former executive-level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. § 1103(i). Section 1103(i) restricts the ability of a former executive-level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of a new employer, rather than the new employer itself. See, Confidential Opinion, 94-011. Conclusion: In your former capacity as the Deputy Secretary for Plant Industry and Consumer Protection for the Department of Agriculture, you were a public official/public employee and an executive-level State employee subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102. Consequently, upon termination of your Commonwealth employment, you became a former public official/public employee and a former executive-level State employee subject to the post- employment restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act, respectively. For purposes of Section 1103(g) of the Ethics Act, the governmental body with which you are deemed to have been associated upon termination of your Commonwealth employment, hereinafter collectively referred to as your “former governmental body,” consists of: (1) the Department of Agriculture in its entirety: (2) the Pennsylvania Gaming Control Board in its entirety; and (3) any committees, boards, or other governmental bodies on which you served in Strathmeyer, 25-529 June 9, 2025 Page 6 your official capacity, except for those bodies whose members are not considered public officials subject to the Ethics Act.Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict you from representing a "person" — including but not limited to your new employer, the Pennsylvania Forest Products Association — on any matter before your former governmental body. The restrictions as to representation outlined above must be followed. As noted above, in addition to being subject to the restrictions of Section 1103(g) of the Ethics Act, you are subject to the restrictions of Section 1103(i) of the Ethics Act. You are advised that under Section 1103(i) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business subject to the conditions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth. Having set forth the restrictions of Sections 1103(g) and 1103(i) of the Ethics Act, your specific questions shall now be considered. Your first question has been addressed above. In response to your second and third questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from interacting with the Pennsylvania legislature or the executive branch of the Commonwealth government or from contacting associates at universities and colleges in Pennsylvania with whom you interacted during your Commonwealth employment as long as in so doing, you would not engage in any activities that would constitute prohibited representation before your former governmental body. Turning to your fourth question, you are advised that the issue of whether there would be any restrictions upon you with regard to engaging in gaming activity following termination of your Commonwealth employment is not governed by the Ethics Act but rather is governed by the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. § 1101 etseq. It is noted that Section 1201(h)(11) of the Gaming Act provides as follows: § 1201. Pennsylvania Gaming Control Board established. (h) Qualifications and restrictions. . . . (11) No member, employee of the board or independent contractor shall accept a complimentary service, wager or be paid any prize from any wager at any licensed facility within this Commonwealth, at any other facility outside this Commonwealth which is owned or operated by a licensed gaming entity or any of its affiliates, intermediaries, subsidiaries or holding companies or as a Strathmeyer,25-529 June 9, 2025 Page 7 result of playing an interactive game including on a multi-use computing device for the duration of their term of office, employment or contract with the board and for a period of two years from the termination of term of office, employment or contract with the board. The provisions of this paragraph prohibiting wagering during the term of employment shall not apply to employees or independent contractors while utilizing slot machines, table game devices, interactive gaming devices or multi-use computing devices for testing purposes or while verifying the performance of a slot machine, table game, interactive gaming device or multi-use computing device as part of an enforcement investigation. 4 Pa.C.S. § 1201(h)(11). Because the Commission does not have the statutory jurisdiction to interpret or administer the restrictions of the Gaming Act, it is suggested that you seek legal advice in that regard. 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 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 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