HomeMy WebLinkAbout09-554 MeyerEvan Meyer, Esquire
General Counsel
City of Philadelphia Board of Ethics
Packard Building, 2 Floor
1441 Sansom Street
Philadelphia, PA 19102 -3026
Dear Mr. Meyer:
ADVICE OF COUNSEL
May 19, 2009
09 -554
This responds to your letters dated April 6, 2009, and April 15, 2009, by which
you requested an advisory from the Pennsylvania State Ethics Commission.
Issue: Whether Section 1103(e) of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. § 1103(e), , would impose any prohibitions or restrictions upon
an individual ("Fellow" ) with regard to accepting an appointed position with the City of
Philadelphia Board of Ethics ("Board of Ethics ") through a public interest fellowship
program ( "the Program ") established by a law firm ( "the Firm') where: (1) pursuant to
the Program, the Fellow would choose from among options for serving with a non - profit
organization, a governmental agency, or an academic institution; (2) the Fellow would
be considered an unpaid volunteer at the Board of Ethics; and (3) the Firm would pay
the Fellow stipends under the Program.
Facts: As General Counsel to the Board of Ethics, you have been authorized by
the Board of Ethics to request an advisory from the Pennsylvania State Ethics
Commission under the following submitted facts.
The law firm of Morgan Lewis & Bockius LLP ( "the Firm ") has informed all recent
law school graduates who were extended an offer to join the Firm in October 2009 that
their regular employment with the Firm will not begin until the fall of 2010. The Firm has
given the aforesaid individuals the option to participate for up to one year in a "Public
Interest Fellowship Program" ( "the Program ") established by the Firm on a nationwide
basis.
Each participant in the Program ( "Fellow ") will be paid stipends by the Firm for
volunteering with a public interest organization for one year. Specifically, the Firm will
pay each Fellow a stipend of $5,000 per month, up to a total of $60,000, as well as a
Meyer, 09 -554
May 19, 2009
Page 2
"bar stipend" to cover the cost of a preparatory course and the bar exam. The Firm
expects most Fellowships to start in October 2009 and to conclude by October 2010.
The Firm has notified the potential Fellows that in order to receive a stipend, the
Firm prefers that a Fellow seek out a legal position with a host organization that is a
non - profit organization, a governmental agency, or an academic institution, and that can
provide appropriate supervision for a junior attorney. The Firm has asked the potential
Fellows to complete surveys identifying, inter alia, any specific organizations with which
they would be particularly interested in working. You state that the Firm will direct the
potential Fellows to an extranet site where they can review Fellowship proposals
submitted to the Firm by public interest organizations.
You state that generally, the Firm will instruct potential Fellows to contact
potential host organizations directly by email. You state that the Firm will ask the
potential Fellows to copy appropriate Firm personnel when contacting potential host
organizations so that the Firm may facilitate matters if possible. When a potential
Fellow has indicated an interest in a particular organization and the Firm has received a
Fellowship proposal from such organization, the Firm will send an email of introduction
and the potential Fellow's resume to the organization.
You state that the Board of Ethics intends to formally appoint at least one Fellow
to a position with the Board of Ethics. You state that Fellows who apply and are
accepted by the Board of Ethics will be considered unpaid volunteers at the Board of
Ethics.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit a Fellow to accept a position as an unpaid volunteer with the Board of Ethics
while receiving a stipend from the Firm under the Program.
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.
Section 1103(e) of the Ethics Act provides:
§ 1103. Restricted activities
(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.
Meyer, 09 -554
May 19, 2009
Page 3
(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.
Payments made or received pursuant to paragraph
(2)(i) and (ii) shall not be based on the agreement,
written or otherwise, that the vote or official action
of the prospective public official or employee would
be influenced thereby.
65 Pa.C.S. § 1103(e).
Pursuant to Section 1103(e) of the Ethics Act, subject to certain statutory
exceptions, 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.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§
1103(b), (c), provide in part that no person shall offer or give to a public official /public
employee anything of monetary value 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.
In Confidential Opinion, 91- 005 -R, the Commission held that Section 1103(e) of
the Ethics Act would not preclude two associate attorneys from a private law firm from
being utilized by a city solicitor, district attorney, or other public entity for a period of time
while their salaries and benefits would be paid by their law firm since their acceptance
of such employment would not be contingent upon the solicitation or acceptance of
anything of value. The Commission concluded that the "contingent" element of Section
1103(e) of the Ethics Act was lacking because the law firm allowed the associate
attorneys to choose from among various options for employment with public or private
entities.
In Rendell /Lillie, Opinion 92 -001, the Commission held that Section 1103(e) of
the Ethics Act would not prohibit a city mayor from utilizing executives on loan from
private employers on a purely voluntary basis to work within the city or on a short term
basis to perform very specialized functions when the salaries of the individuals would
continue to be paid by their private employers. The Commission concluded that the
"contingent" element of Section 1103(e) of the Ethics Act was not present because
under the submitted facts, the business executives would not be directed by their
private employers to leave industry and join the city but rather would be given a real
choice whether to serve and spend time in the city government as consultants.
In Confidential Opinion, 92 -003, the Commission held that Section 1103(e) of the
Ethics Act would not preclude a corporate executive from accepting the position of
deputy mayor for a city when he would not accept a city salary but would continue to
accept his corporate salary because the acceptance of employment with the city would
be on a purely voluntary basis.
Meyer, 09 -554
May 19, 2009
Page 4
In applying the above Commission precedents to the instant matter, you are
advised as follows. Section 1103(e) of the Ethics Act would not prohibit a Fellow from
accepting a position as an unpaid volunteer with the Board of Ethics while receiving
stipends from the Firm under the Program where the acceptance of the position with the
Board of Ethics would be on a purely voluntary basis such that the "contingent" element
of Section 1103(e) would not be present. Cf., Confidential Opinion, 92 -003;
Rendell /Lillie, supra; Confidential Opinion, 91- 005 -R.
The propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the City of Philadelphia
Home Rule Charter.
Conclusion: Based upon the submitted facts that: (1) the law firm of Morgan
Lewis & Bockius LLP ( "the Firm ") has informed all recent law school graduates who
were extended an offer to join the Firm in October 2009 that their regular employment
with the Firm will not begin until the fall of 2010; (2) the Firm has given the aforesaid
individuals the option to participate for up to one year in a "Public Interest Fellowship
Program" ( "the Program') established by the Firm on a nationwide basis; (3) each
participant in the Program ( "Fellow ") will be paid a monthly stipend and a "bar stipend"
by the Firm for volunteering with a public interest organization for one year; (4) the Firm
expects most Fellowships to start in October 2009 and to conclude by October 2010; (5)
the Firm has notified potential Fellows that in order to receive a stipend, the Firm prefers
that a Fellow seek out a legal position with a host organization that is a non - profit
organization, a governmental agency, or an academic institution, and that can provide
appropriate supervision for a junior attorney; (6) the City of Philadelphia Board of Ethics
"Board of Ethics ") intends to formally appoint at least one Fellow to a position with the
Board of Ethics; and (7) Fellows who apply and are accepted by the Board of Ethics will
be considered unpaid volunteers at the Board of Ethics, you are advised as follows.
Section 1103(e) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1103(e), would not prohibit a Fellow from accepting a position as an unpaid
volunteer with the Board of Ethics while receiving stipends from the Firm under the
Program where the acceptance of the position with the Board of Ethics would be on a
purely voluntary basis such that the "contingent" element of Section 1103(e) would not
be present.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
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
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
Meyer, 09 -554
May 19, 2009
Page 5
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel