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HomeMy WebLinkAbout26-561 ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL September 3, 2026 26-561 This responds to your letter dated August 24, 2026, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issue presented below: Issue: Facts: Whether the "revolving door" restrictions of Section 1103(g) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(g), would prohibit you from accepting a position with a private company that does work for the [Political Subdivision] and other clients following termination of your employment as the [Position] of the [Political Subdivision Department]. Brief Answer: Section 1103(g) of the Ethics Act would not prohibit you from accepting a position with a private company that does work for the [Political Subdivision] and other clients following termination of your employment with the [Political Subdivision]. However, during the first year following termination of your [Political Subdivision] employment, 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 a new employer such as the private company before your "former governmental body," the [Political Subdivision Department]. You request a confidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Confidential Advice, 26-561 September 3, 2026 Page 2 You are currently employed as the [Position] of the [Political Subdivision Department]. You have served in numerous roles in the [Political Subdivision] government during your career. You state that you are now at your retirement age and that the nature of your work has created a very technical skill set and has limited your opportunities for post -retirement employment in your geographic area. You further state that in most cases, entities that you would consider to be potential employers do work under contract for the [Political Subdivision]. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing work for a new employer following your retirement from your employment as the [Position] of the [Political Subdivision Department]. In particular, you pose the following questions: (1) Would you be in violation of the Ethics Act if, following your retirement, you immediately began employment as an hourly or salaried employee with a private company that has a contract with the [Political Subdivision], where: (a) You would not represent the private company before the [Political Subdivision Governing Body]; (b) You would not be an officer, principal, or shareholder of the private company; (c) You would not participate in the negotiation of any contracts between the private company and the [Political Subdivision]; (d) When you would be assigned to do [Political Subdivision] work, you would perform work that is already an obligation of the private company under existing contracts with the [Political Subdivision]; and (e) No commissions or incentives related to any [Political Subdivision] contracts would be provided to you; (2) Under the above facts, would you be permitted to begin employment with the private company immediately upon your retirement in any/all of the following scenarios: (a) You would not perform any work for the [Political Subdivision] and would be involved only in working on projects for other clients; (b) You would perform occasional work for the [Political Subdivision] but also would be assigned to perform work for other clients; or (c) You would be assigned to do work solely for the [Political Subdivision]; (3) In scenario (2)(a) above, would it alter the answer if your position with the private company would require you to be [In a Certain Status] for [Certain Work] for all Confidential Advice, 26-561 September 3, 2026 Page 3 clients of the private company, including the [Political Subdivision], and in that [Type of Roll], you would perform after-hours work for the [Political Subdivision] until you could be relieved by another employee during normal business hours; (4) Would there be any limitations upon your employment with a private company that is a subcontractor to another private company that has a contractual relationship with the [Political Subdivision]; (5) Irrespective of any answers as to the above, would there be any limitations on your assigned work with a private company, including work for the [Political Subdivision], after one full year following your retirement from your [Political Subdivision] employment; and (6) "Is there any time period on the applicability of your responses to this inquiry (assuming no change in the Ethics Act)? More simply, can your opinion be relied on a year after its receipt? 5 years? Etc.?" August 24, 2026, Advisory Request Letter, at 2. 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 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: Confidential Advice, 26-561 September 3, 2026 Page 4 § 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. 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 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. 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 Confidential Advice, 26-561 September 3, 2026 Page 5 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. Conclusion: As the [Position] of the [Political Subdivision Department], you are a "public employee" subject to the provisions of the Ethics Act. Consequently, upon termination of your [Political Subdivision] employment, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your [Political Subdivision] employment would be the [Political Subdivision Department] in its entirety. For the first year following termination of your [Political Subdivision] employment, Section 1103(g) of the Ethics Act would apply and restrict you from "representing" a "person" including but not limited to a new employer before the [Political Subdivision Department]. The restrictions as to representation outlined above must be followed. Your specific questions shall now be addressed. In response to your first, second, and third questions, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from retiring from your [Political Subdivision] employment and beginning employment immediately thereafter as an hourly or salaried employee with a private company that has a contract with the [Political Subdivision]. However, during the first year following the termination of your [Political Subdivision] employment, Section 1103(g) would prohibit you from performing any work as an employee of the private company that would involve prohibited representation before the [Political Subdivision Department] as delineated above. Section 1103(g) would not prohibit you from representing the private company before [Political Subdivision] governmental bodies, agencies, or departments other than the [Political Subdivision Department] or any clients other than the [Political Subdivision Department]. Confidential Advice, 26-561 September 3, 2026 Page 6 Although you question in part whether you would be permitted to do or perform work for the [Political Subdivision] under certain circumstances, the submitted facts do not clearly indicate whether the proposed work would involve solely the [Political Subdivision Department] or could involve some other part or parts of the [Political Subdivision] government. Therefore, this advisory is necessarily limited to providing the following general guidance regarding your proposed performance of work for the [Political Subdivision]. Section 1103(g) of the Ethics Act would prohibit you from performing work for the [Political Subdivision] as an employee of the private company if such work would involve prohibited representation before the [Political Subdivision Department]. Section 1103(g) would not prohibit you from performing work for the [Political Subdivision] as an employee of the private company where such work would not involve prohibited representation before the [Political Subdivision Department]. To the extent that your position with the private company would require you to be [In a Certain Status] for after-hours [Type of Work] for all clients of the private company, including the [Political Subdivision], Section 1103(g) would prohibit you from performing after- hours work for the [Political Subdivision] if such work would involve prohibited representation before the [Political Subdivision Department]. With regard to your fourth question, you are advised that Section 1103(g) of the Ethics Act would prohibityou from performing any job duties as an employee of a subcontractor to a business that has a contractual relationship with the [Political Subdivision] that would involve prohibited representation before the [Political Subdivision Department]. In response to your fifth question, you are advised that Section 1103(g) of the Ethics Act would not apply to restrict you from performing any job duties for a private company or other employer after the expiration of a full one-year period following your retirement from the [Political Subdivision]. In response to your sixth question, you are advised that the Ethics Act does not limit the length of time that an advisory opinion remains effective. Therefore, this Advice of Counsel may be relied upon indefinitely. 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. 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. Confidential Advice, 26-561 September 3, 2026 Page 7 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, LD Bridget K. Guilfoyle Chief Counsel