Loading...
HomeMy WebLinkAbout25-536 NaylorPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Leah Naylor Dear Ms. Naylor: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL September 10, 2025 25-536 This responds to your letter dated August 25, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue• Whether, following termination of your service as a Member of the Board of Trustees of Seven Generations Charter School ("the Charter School"), the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec would impose any prohibitions or restrictions upon you with regard to working as a behavioral specialist for Zimzum Consulting and providing behavioral services during school hours to a kindergartener attending the Charter School. Brief Answer: During the first year following termination of your service as a Member of the Charter School Board of Trustees, 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 your employer, Zimzum Consulting before your "former governmental body," the Charter School Board of Trustees. Section 1103(g) would not restrict you from providing behavioral services during school hours to a kindergartner attending the Charter School subject to the condition that in so doing, you would not engage in any activity that would involve prohibited representation of yourself or Zimzum Consulting before the Charter School Board of Trustees as delineated below. Naylor, 25-536 September 10, 2025 Page 2 Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You recently resigned from the Board of Trustees of the Charter School, which is located in Emmaus, Pennsylvania. As an employee of Zimzum Consulting, you have been providing behavioral services to a young client ("the Client") for approximately one year. Insurance pays for the behavioral services provided to the Client by Zimzum Consulting. The Client has been enrolled at the Charter School as a kindergartener, and you have been asked to provide behavioral services to him during school hours. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to providing behavioral services to the Client at the Charter School during school hours. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(l 1) 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 (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 Naylor, 25-536 September 10, 2025 Page 3 "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 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 aM 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 Naylor, 25-536 September 10, 2025 Page 4 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. conclnsinn: In your former capacity as a Member of the Charter School Board of Trustees, you were a public official subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 24 P.S. § 17- 1715-A. Consequently, upon termination of your service with the Charter School Board of Trustees, you became a former public official subject to the post -employment restrictions of Section 1103(g) of the Ethics Act. The governmental body with which you are deemed to have been associated upon termination of your service as a Member of the Charter School Board of Trustees is the Charter School Board of Trustees. Therefore, for the first year following termination of your service as a Member of the Charter School Board of Trustees, Section 1103(g) of the Ethics Act would apply and restrict you from "representing" a "person" including but not limited to yourself or your employer, Zimzum Consulting before the Charter School Board of Trustees. The restrictions as to representation outlined above must be followed. Section 1103(g) would not restrict you from providing behavioral services to the Client at the Charter School during school hours as long as in so doing, you would not engage in any activity that would involve prohibited representation before the Charter School Board of Trustees as set forth above. 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. Naylor, 25-536 September 10, 2025 Page 5 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