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HomeMy WebLinkAbout25-535/25-1501 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requesters: 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 9, 2025 25-535/25-1501 This responds to your letter dated August 8, 2025, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issues presented below: Issues: (1) Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec ., would impose prohibitions or restrictions upon an individual serving as a state legislator with regard to accepting a position as [Title] of a [Type of Organization] and performing the duties of such position either while serving as a state legislator or during the first year following termination of his service as a state legislator. Brief Answer: Section 1103(a) of the Ethics Act (pertaining to public officials/public employees and conflict of interest) would not prohibit the individual from accepting the position of [Title] of the [Type of Organization] while serving as a state legislator. Pursuant to Section 1103(a) of the Ethics Act, in his capacity as a state legislator, the individual generally would be prohibited from using the authority of his public position to effectuate a private pecuniary (financial) benefit to himself or the [Type of Organization], which would be considered a business with which the individual is associated. However, Section 1103(a) of the Ethics Act would not apply to the individual insofar as his activities as a state legislator would constitute "legislative actions" (introducing, considering, debating, voting, enacting, adopting, or approving legislation). During the first year following termination of his service as a state legislator, Section 1103(g) of the Ethics Act would prohibit the individual from representing the [Type of Organization] before his former governmental body, the [Chamber of the General Assembly]. (2) Whether Pennsylvania's Lobbying Disclosure Law ("Lobbying Disclosure Law"), 65 Pa.C.S. § 13A01 et sec ., would impose prohibitions, restrictions, or disclosure Confidential Advice, 25-535/25-1501 September 9, 2025 Page 2 requirements upon the individual if he would accept employment as [Title] of the [Type of Organization]. Brief Answer: To the extent that the individual would engage in "lobbying" as defined by the Lobbying Disclosure Law on behalf of the [Type of Organization], the individual would be considered a "lobbyist" and would be required to register as such with the Pennsylvania Department of State pursuant to Section 13A04(a) of the Lobbying Disclosure Law unless exempt pursuant to Section 13A06 of the Lobbying Disclosure Law. Additionally, as a lobbyist, the individual would be required to observe the applicable prohibitions of Section 13A07 of the Lobbying Disclosure Law. Facts: You request a confidential advisory from the Commission on behalf of an individual ("the Individual") serving as a Member of the [Chamber of the General Assembly]. The Individual has been offered a salaried position as [Title] of [Name of Entity] ("the Entity"), which is a [Type of Organization] that represents [a Number of Members] across the Commonwealth. The Commonwealth of Pennsylvania's Lobbying Disclosure Registration site reflects that the Entity is a registered principal under the Lobbying Disclosure Law. The Individual's proposed employment with the Entity is expected to commence on [Date]. The Individual has indicated that he intends to exit public office at the end of his current term, which runs through November 2026. Accordingly, there would be a period of contemporaneous service as a Member of the [Chamber of the General Assembly] and employment as [Title] of the Entity. The Individual will adhere to certain self-imposed restrictions if he becomes employed with the Entity. In particular, the Individual: (1) will recuse himself from all votes of the [Chamber of the General Assembly] [Relating to Certain Matters] until the end of his term of office on November 30, 2026; (2) will not represent the Entity before the [Other Chamber of the General Assembly] at any time before December 1, 2026; and (3) will not represent the Entity before the [Chamber of the General Assembly] at any time before December 1, 2027. Until December 1, 2026, the Individual's job duties pertaining to [Certain Matters] will relate to only the federal government. After December 1, 2026, the Individual's [Type of Duties] will expand to include matters pertaining to state and local governments and will involve: [List of Duties]. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act or the Lobbying Disclosure Law would impose prohibitions or restrictions upon the Individual with regard to being employed as [Title] of the Entity within the parameters set forth above; (2) What are the lobbying disclosure requirements under Sections 13A04 and 13A05 of the Lobbying Disclosure Law with regard to the Individual operating within the parameters set forth above; Confidential Advice, 25-535/25-1501 September 9, 2025 Page 3 (3) Whether the Individual would be required to disclose any information on his Statement of Financial Interests pertaining to being employed with the Entity beyond disclosing the Entity as a "Source of Income" in Block 10 and his "Office, Directorship or Employment in Any Business" in Block 13; and (4) Whether Section 1103(g) of the Ethics Act would impose any prohibitions upon the Individual with regard to performing the job duties of [Title] of the Entity following termination of his service as a Member of the [Chamber of the General Assembly]. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), in conjunction with Section 13A08 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A08, 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 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 Confidential Advice, 25-535/25-1501 September 9, 2025 Page 4 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. 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. Confidential Advice, 25-535/25-1501 September 9, 2025 Page 5 Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), requires a public official/public employee to file a Statement of Financial Interests for the preceding calendar year, each year that he holds the public position and the year after he leaves it. Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), and its subsections detail the information that a person required to file the Statement of Financial Interests must provide. Section 1105(b)(2) of the Ethics Act requires the filer to disclose on his Statement of Financial Interests his occupation or profession. The post -employment restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees. Section 1103(g) restricts a 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 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. Confidential Advice, 25-535/25-1501 September 9, 2025 Page 6 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 a� 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 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. Turning to the Lobbying Disclosure Law, Section 13A03 of the Lobbying Disclosure Law defines the term "lobbying" and the related terms "administrative action" and "legislative action" as follows: Confidential Advice, 25-535/25-1501 September 9, 2025 Page 7 "Lobbying." An effort to influence legislative action or administrative action in this Commonwealth. The term includes: (1) direct or indirect communication; (2) office expenses; and (3) providing any gift, hospitality, transportation or lodging to a State official or employee for the purpose of advancing the interest of the lobbyist or principal. "Legislative action." An action taken by a State official or employee involving the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of: (1) legislation; (2) legislative motions; (3) a veto by the Governor; or (4) confirmation of appointments by the Governor or appointments to public boards or commissions by a member of the General Assembly. "Administrative action." Any of the following: (1) An agency's: (i) proposal, consideration, promulgation or rescission of a regulation; (ii) development or modification of a statement of policy; (iii) approval or rejection of a regulation; or (iv) procurement of supplies, services and construction under 62 Pa.C.S. (relating to procurement). (2) The review, revision, approval or disapproval of a regulation under the act of June 25, 1982 (P.L.633, No. 181), known as the Regulatory Review Act. (3) The Governor's approval or veto of legislation. Confidential Advice, 25-535/25-1501 September 9, 2025 Page 8 (4) The nomination or appointment of an individual as an officer or employee of the Commonwealth. (5) The proposal, consideration, promulgation or rescission of an executive order. 65 Pa.C.S. § 13A03. A "lobbyist" engages in lobbying on behalf of a "principal" for "economic consideration," and a principal lobbies on its own behalf or through a lobbyist or lobbying firm: "Lobbyist." Any individual, association, corporation, partnership, business trust or other entity that engages in lobbying on behalf of a principal for economic consideration. The term includes an attorney at law while engaged in lobbying. "Principal." An individual, association, corporation, partnership, business trust or other entity: (1) on whose behalf a lobbying firm or lobbyist engages in lobbying; or (2) that engages in lobbying on the principal's own behalf. "Economic consideration." Anything of value offered or received. The term includes compensation and reimbursement for expenses. 65 Pa.C.S. § 13A03. Conclusion: In applying the above provisions of the Ethics Act and the Lobbying Disclosure Law to the instant matter, you are advised as follows. In his capacity as a Member of the [Chamber of the General Assembly], the Individual 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 Individual in his capacity as a public official, rather than upon him in his private capacity. Therefore, Section 1103(a) would not prohibit the Individual, in his private capacity, from accepting employment as [Title] of the Entity. If the Individual would accept the proposed position of employment with the Entity, the Entity would be considered a business with which the Individual is associated. Pursuant to Section 1103(a) of the Ethics Act, in his public capacity as a Member of the [Chamber of the General Assembly], the Individual generally would be prohibited from using the authority of his public position to effectuate a private pecuniary (financial) benefit to himself or Confidential Advice, 25-535/25-1501 September 9, 2025 Page 9 the Entity. However, Section 1103(a) of the Ethics Act would not apply to the Individual insofar as his activities as a public official would constitute legislative actions. Section 1103(a) of the Ethics Act would prohibit the Individual from using his status as a state legislator in furtherance of the Entity's business interests. See, Confidential Opinion, 05-002; Confidential Opinion, 05- 009. Upon termination of the Individual's service as a Member of the [Chamber of the General Assembly], the Individual would become a "former public official" subject to Section 1103(g) of the Ethics Act. The governmental body with which the Individual would be deemed to have been associated upon termination of his service with the [Chamber of the General Assembly] would be the [Chamber of the General Assembly] in its entirety. Therefore, for the first year following termination of the Individual's public service, Section 1103(g) of the Ethics Act would apply and restrict the Individual from "representing" a "person" before the [Chamber of the General Assembly]. Accordingly, during the first year following termination of service with the [Chamber of the General Assembly], Section 1103(g) of the Ethics Act would prohibit the Individual from performing any job duties as [Title] of the Entity that would involve prohibited representation of the Entity before the [Chamber of the General Assembly] as delineated above. With respect to the applicability of the Lobbying Disclosure Law to the instant matter, you are advised as follows. To the extent that the Individual as [Title] of the Entity would engage in "lobbying" on behalf of the Entity, a principal, the Individual would be considered a "lobbyist" and would be required to register as such with the Pennsylvania Department of State pursuant to Section 13A04(a) of the Lobbying Disclosure Law unless exempt pursuant to Section 13A06 of the Lobbying Disclosure Law. See, 65 Pa.C.S. §§ 13A04(a), 13A06. Additionally, as a lobbyist, the Individual would be required to observe the applicable prohibitions of Section 13A07 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A07. Section 13A05 of the Lobbying Disclosure Law, which imposes reporting requirements on registered principals, would not impose disclosure or reporting requirements upon the Individual himself, however, information pertaining to the Individual's activities as a lobbyist would need to be disclosed on quarterly expenses reports filed by the Entity with the Pennsylvania Department of State pursuant to the requirements of Section 13A05. See, 65 Pa.C.S. § 13A05. Turning to the Statement of Financial Interests disclosure requirements that would be imposed upon the Individual if he would become employed with the Entity, you are advised as follows. In addition to observing the disclosure requirements of Section 1105(b)(5) of the Ethics Act (pertaining to disclosure of sources of income) and Section 1105(b)(8) of the Ethics Act (pertaining to disclosure of office, directorship or employment in any business entity), pursuant to Section 1105(b)(2) of the Ethics Act, the Individual would be required to disclose on his Statement of Financial Interests his occupation/profession as [Title] of the Entity. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act and the Lobbying Disclosure Law. 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, 25-535/25-1501 September 9, 2025 Page 10 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