HomeMy WebLinkAbout06-007 CONFIDENTIAL OPINIONOPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
DATE DECIDED: October 4, 2006
DATE MAILED: October 20, 2006
06 -007
This Opinion is issued in response to your request for a confidential advisory that
this Commission received on July 20, 2006.
I. ISSUE:
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., presents any prohibition or restrictions upon an A from working in a state
government position following termination of service with the B.
II. FACTUAL BASIS FOR DETERMINATION:
As A for the D, you seek a confidential advisory. You have submitted facts that
may be fairly summarized as follows.
You are terminating your service with the B at the end of Event E on [date]. You
seek guidance regarding any prohibition or restrictions on your ability to work in a state
government position following your termination of service with the B. Specifically, you
seek guidance as to your ability to work in Office F or to serve as a Position G or
Position H.
By letter dated July 21, 2006, you were notified of the date, time and location of
the executive meeting at which your request would be considered.
III. 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, this Commission does not engage in an independent
investigation of the facts, nor does it speculate as to facts that have not been submitted.
Confidential O anion, 06 -007
October 20, 2006
Page 2
It is the burden of the re uester 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.
As A for the D, you are 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 public service, you would become a "former
public official" subject to Section 1103(g) of the Ethics Act.
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.
"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 any activity. Examples of prohibited representation include: (1) personal
Confidential O anion, 06 -007
October 20, 2006
Page 3
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 though the invoices pertain to a contract that existed prior to
termination of public service. 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 ublic
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.
The governmental body with which you would be associated upon termination of
public service would be the B in its entirety as well as any 1, J, K and the like upon which
you served in an official capacity. Therefore, for the first year after termination of
service with the B, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of "persons" before the B and any 1, J, K and the like upon which you
served in an official capacity.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that the Ethics Act would not prohibit you from accepting employment with
Office F or from serving as a Position G or Position H. However, to the extent your
responsibilities in such a position would require you to interact with the B or any 1, J, K
or the like upon which you served in an official capacity in a manner that would
constitute "representation," your performance of such activities would be contrary to
Section 1103(g) of the Ethics Act.
Based upon the facts which have been submitted, this Opinion has addressed
the applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a)
of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the
Confidential O anion, 06 -007
October 20, 2006
Page 4
Ethics Act provide in part that no person shall offer to a public official /public employee
and no public official /public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
official /public employee would be influenced thereby. Reference is made to these
provisions of the law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the question presented.
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 in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the L.
IV. CONCLUSION:
As A for the D, you would be considered a "public official" as defined in the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon
termination of service with the B, you would become a "former public official" subject to
Section 1103(g) of the Ethics Act. The former governmental body would be the B in its
entirety as well as any 1, J, K and the like upon which you served in an official capacity.
The restrictions as to representation outlined above must be followed. The
propriety of the proposed conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after termination of service.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair