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HomeMy WebLinkAbout25-559 Hollenbeck 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 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNEL December 22, 2025 To the Requester: Mark J. Hollenbeck, Esq. 25-559 Dear Mr. Hollenbeck: This responds to your letter dated November 24, 2025, received December 1, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon an individual serving as a city controller with regard to performing work for the city as an independent contractor following termination of service as the city controller. Brief Answer: YES. During the first year following termination of the individual’s service as the city controller, Section 1103(g) of the Ethics Act would apply and restrict the individual from engaging in any activity that would involve “representing” a “person” — including but not limited to himself as an independent contractor — before his “former governmental body,” the office of the city controller. Facts: As the Solicitor for the City of Bradford (“City”), you have been authorized by Randall Turner (“Mr. Turner”), who is the City Controller, to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Hollenbeck, 25-559 December 22, 2025 Page 2 Mr. Turner’s term of office as the City Controller is ending. In a private capacity and unrelated to his City Controller duties, Mr. Turner has a business where he inspects Workers’ Compensation matters for various private employers and identifies whether there are potential savings with regard to those matters. The City is interested in requesting Mr. Turner to act as an independent contractor to the City after his term of office expires. The City proposes entering into a written agreement with Mr. Turner to memorialize the City’s relationship with him. As an independent contractor, Mr. Turner would be paid an annual retainer of $5,000 to review financial matters of the various City departments and make recommendations to the appropriate City officials regarding any opportunities for cost savings or improved efficiencies.Mr. Turner also would be authorized to investigate possible savings on the City’s Workers’ Compensation insurance, and in addition to the City paying Mr. Turner an annual retainer, any savings identified would be split equally between the City and Mr. Turner. You seek guidance as to whether Section 1103(e) or Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon Mr. Turner with regard to acting as an independent contractor to the City under the proposed arrangement following termination of his service as the City Controller. 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. Section1103(e) of the Ethics Act provides: § 1103(e). Contingent and severance payments.-- (1) No person shall solicit or accept a severance payment or anything of monetary value contingent upon the assumption or acceptance of public office or employment. (2) This subsection shall not prohibit: (i) Payments received pursuant to an employment agreement in existence prior to the time a person becomes a candidate or is notified by a member of a transition team, a search committee, or a person with appointive power that he is under consideration for public office or makes application for public employment. Hollenbeck, 25-559 December 22, 2025 Page 3 (ii) Receipt of a salary, fees, severance payment or proceeds resulting from the sale of a person’s interest in a corporation, professional corporation, partnership or other entity resulting from termination or withdrawal therefrom upon the assumption or acceptance of public office or employment. (3) Payments made or received pursuant to paragraph 2(i) or (ii) shall not be based on the agreement, written or otherwise, that the vote or official action pf the prospective public official or employee would be influenced thereby. 65 Pa.C.S. § 1103(e). Pursuant to Section 1103(e), “a person is prohibited from soliciting or accepting a severance payment or anything of monetary value contingent upon the assumption or acceptance of public office or employment.” Confidential, Opinion 17-544. 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 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. Hollenbeck, 25-559 December 22, 2025 Page 4 “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. During the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) generally would prohibit a former public official/public employee from contracting with the former governmental body (see, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005) or providing consulting services constituting representation before the former governmental body (see, Claycomb, Opinion 14-004; Schrempf, Opinion 13-004). 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 Hollenbeck, 25-559 December 22, 2025 Page 5 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. Conclusion: As the City Controller, Mr. Turner is a “public official” 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 his service as the City Controller, Mr. Turner would become a “former public official” subject to Section 1103(g) of the Ethics Act. The governmental body with which Mr. Turner would be deemed to have been associated upon termination of his service as the City Controller would be the City Controller’s Office in its entirety. Therefore, for the first year following termination of his service as the City Controller, Section 1103(g) of the Ethics Act would apply and restrict Mr. Turner from “representing” a “person” —including but not limited to himself as an independent contractor — before the City Controller’s Office. The restrictions as to representation outlined above must be followed. The submitted facts do not indicate whether or to what extent Mr. Turner’s proposed activities as an independent contractor to the City would involve contact or interaction with the City Controller’s Office. Therefore, you are advised that during the first year following termination of Mr. Turner’s service as the City Controller, Section 1103(g) of the Ethics Act would prohibit Mr. Turner from acting as an independent contractor to the City under the proposed arrangement unless he would be able to do so without engaging in any activity that would constitute prohibited representation of himself, as an independent contractor, before the City Controller’s Office as set forth above. Once a full one-year period following Mr. Turner’s service as the City Controller has expired, Section 1103(g) of the Ethics Act would not impose any restrictions upon Mr. Turner with respect to acting as an independent contractor to the City or in any other capacity. You are further advised that Section 1103(e) of the Ethics Act would not prohibit the proposed arrangement because there is no indication in the submitted facts that Mr. Turner would be “soliciting or accepting a severance payment or anything of monetary value contingent upon the assumption or acceptance of public office or employment.” 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. Hollenbeck,25-559 December 22, 2025 Page 6 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 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