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HomeMy WebLinkAbout10-547 Rowe ADVICE OF COUNSEL February 19, 2010 Greg A. Rowe rd 249 South 23 Street Philadelphia, PA 19103 10-547 Dear Mr. Rowe: This responds to your letters dated December 22, 2009, and December 28, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any restrictions upon an attorney, who has served as a Senior Policy Manager with the Governor’s Policy Office and Special Assistant to the Governor for Public Safety, with regard to lobbying Executive Branch agencies following termination of Commonwealth employment. Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post-employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. At the time that you submitted your inquiry, you were employed as a Senior Policy Manager with the Governor’s Policy Office and Special Assistant to the Governor for Public Safety. You noted that there is neither an official position description nor official job classification specifications for either of your aforesaid positions with the Commonwealth. You stated that since April 2004, you have worked in the Governor’s Policy Office as a Senior Policy Manager for criminal justice, in which capacity you have coordinated various matters of public safety on behalf of the Governor. You stated that where appropriate, you have worked closely with members/staff of the Pennsylvania Department of Corrections (“Department of Corrections”), the Pennsylvania State Police, the Pennsylvania Board of Probation and Parole, and the Pennsylvania Commission on Crime and Delinquency. You stated that you also worked on various occasions on a variety of other issues with staff from the Pennsylvania Emergency Management Agency, the Pennsylvania National Guard, the Pennsylvania Liquor Control Board, and the Pennsylvania Department of State. Beginning in October 2009, you assumed additional duties as Special Assistant to the Governor for Public Safety. You stated that you have served as the Governor’s Rowe, 10-547 February 19, 2010 Page 2 day-to-day contact for the Pennsylvania State Police, the Pennsylvania Board of Probation and Parole, the Department of Corrections, and the Pennsylvania Commission on Crime and Delinquency. You stated that you have not supervised any of the aforementioned agencies or any their employees but have instead worked with them on behalf of the Governor and other senior staff on various matters, including policy development, legislative advocacy, budget issues, and grant funding strategies. You stated that in your capacity as Senior Policy Manager, you have reported to the Governor’s Secretary of Policy and Planning. You stated that you have reported to the Chief of Staff in your capacity as Special Assistant to the Governor for Public Safety. You stated that the Department of Corrections has paid for your salary and provided you with a laptop and Blackberry. You further stated, however, that the Department of Corrections has not supervised you in any manner. You stated that you have not reported to anyone at the Department of Corrections and that your relationship with said agency has been no different than your relationships with the other agencies with which you have worked. You stated that you would be leaving your Commonwealth employment on December 28, 2009, to become Chief of the Legislation and Policy Unit in the Philadelphia District Attorney’s Office. Finally, it is noted that you are an attorney licensed to practice law in the Commonwealth. Based upon the above facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to lobbying the Office of the Governor or Executive Branch agencies during the first year following termination of your Commonwealth employment. 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. As a Senior Policy Manager with the Governor’s Policy Office and Special Assistant to the Governor for Public Safety, you would be considered a public official/public employee and an “executive-level State employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Upon termination of Commonwealth employment, you would become a former public official/public employee and a former executive-level State employee. Section 1103(i) of the Ethics Act restricts former executive-level State employees as follows: § 1103. Restricted activities (i)Former executive-level employee.-- No former executive-level State employee may for a period of two years from the time that he terminates employment with this Rowe, 10-547 February 19, 2010 Page 3 Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. § 1103(i). Section 1103(g) of the Ethics Act provides as follows: § 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. Section 1103(g) of the Ethics Act restricts a former public official/public employee with regard to “representing” a “person” before “the governmental body with which he has been associated.” However, Section 1103(g) of the Ethics Act may not be applied to restrict an attorney’s conduct insofar as it constitutes the practice of law, because the Rowe, 10-547 February 19, 2010 Page 4 Pennsylvania Supreme Court has the exclusive authority to regulate an attorney’s conduct in that regard. Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003). The governmental body with which you would be deemed to have been associated upon termination of Commonwealth employment, hereinafter collectively referred to as your “former governmental body,” would be the Office of the Governor in its entirety (including but not limited to the Executive Offices, the Office of Administration, and the Office of the Budget) as well as the Department of Corrections. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before your former governmental body as delineated above, to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Confidential Advice, 05-583; Confidential Advice, 04-524. The Commonwealth Court of Pennsylvania has held that lobbying by a lawyer is the practice of law. Gmerek v. State Ethics Commission, 751 A.2d 1241 (Pa. Commw. Ct. 2000), affirmed by evenly divided Court, 569 Pa. 579, 807 A.2d 812 (2002). Therefore, you are advised that during the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would not apply to prohibit you from lobbying your former governmental body to the extent your activity(ies) would constitute the practice of law. Additionally, Section 1103(g) of the Ethics Act would not prohibit you from lobbying any other Commonwealth agencies or bodies. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct or the Rules of Professional Conduct. Conclusion: As a Senior Policy Manager with the Governor’s Policy Office and Special Assistant to the Governor for Public Safety, you would be considered a public official/public employee and an “executive-level State employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Upon termination of Commonwealth employment, you would become a former public official/public employee and a former executive-level State employee. The governmental body with which you would be deemed to have been associated upon termination of Commonwealth employment, hereinafter collectively referred to as your “former governmental body,” would be the Office of the Governor in its entirety (including but not limited to the Executive Offices, the Office of Administration, and the Office of the Budget) as well as the Pennsylvania Department of Corrections. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before your former governmental body to the extent such representation would not constitute the practice of law. During the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would not apply to prohibit you from lobbying your former governmental body to the extent your activity(ies) would constitute the practice of law. Additionally, Section 1103(g) of the Ethics Act would not prohibit you from lobbying any other Commonwealth agencies or bodies. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Rowe, 10-547 February 19, 2010 Page 5 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. Sincerely, Robin M. Hittie Chief Counsel