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Home My WebLink About10-608 Kane ADVICE OF COUNSEL September 2, 2010 Patrick A. Kane III, Esquire 2605 Interstate Drive Harrisburg, PA 17110 10-608 Dear Mr. Kane: This responds to your submission dated August 2, 2010, 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 employment of an Attorney 3 - Non-Supervisory with the Pennsylvania Office of General Counsel, who in such capacity represents the Pennsylvania Emergency Management Agency and the Office of the State Fire Commissioner, 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. You are currently employed as an Attorney 3 - Non-Supervisory with the Pennsylvania Office of General Counsel (“OGC”), in which capacity you represent the Pennsylvania Emergency Management Agency (“PEMA”) and the Office of the State Fire Commissioner. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Attorney 3 - Non-Supervisory with OGC (job code 07131) has been obtained and is also incorporated herein by reference. You state that PEMA has contracted with a firm named “L. Robert Kimball & Associates” (“the Firm”) since 2004 for the provision of technical and administrative consulting for PEMA’s Bureau of 9-1-1. You state that PEMA recently contracted with Kimball (“the New Contract”) for an additional one-year term with two one-year options for the provision of similar services. You have submitted a copy of a memorandum dated May 12, 2010, from you to the Chief Counsel of PEMA, in which you stated that you were reconfirming your verbal recusal from involvement in the selection of the Firm as consultant to PEMA’s Bureau of 9-1-1. You noted that in or around October 2009 you had engaged in preliminary discussions with Firm executives regarding a potential position with the Firm. Kane, 10-608 September 2, 2010 Page 2 In your August 2, 2010, advisory request, you state that you have been offered a position with the Firm as a Legislative and Regulatory Consultant. You state that in the aforesaid position, you would function as a full-time resource to assist PEMA with its legislative initiative to amend the Public Safety Emergency Telephone Act, 35 P.S. § 7011 et seq. You describe the position as an advocate of PEMA. You have submitted copies of a document pertaining to the New Contract entitled “Excerpt from L. Robert Kimball & Associates’ Statement of Work for the Pennsylvania Emergency Management Agency” and a list of the job responsibilities under the New Contract for the position of Legislative and Regulatory Consultant with the Firm, both of which documents are incorporated herein by reference. You state that although the Firm is not a law firm, the Firm’s qualifications for the position of Legislative and Regulatory Consultant include possession of a law degree from an American Bar Association accredited law school and experience as a practicing attorney. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you if you would accept employment as a Legislative and Regulatory Consultant with the Firm. 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 an Attorney 3 – Non-Supervisory for OGC, you would be considered a “public 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. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of employment with OGC, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. 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: Kane, 10-608 September 2, 2010 Page 3 § 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.” 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 “represent” is also broadly defined to prohibit acting on behalf of any person in any activity. 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 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). Additionally, 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. Cmwlth. 2000), affirmed by evenly divided Court, 569 Pa. 579, 807 A.2d 812 (2002). 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 OGC in its entirety, as well as PEMA and the Office of the State Fire Commissioner. 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; Rowe, Advice 10-547; Confidential Advice, 05-583. You are advised that the duties of your proposed position as a Legislative and Regulatory Consultant with the Firm would involve representation of the Firm before PEMA, and that such representation before PEMA would be prohibited by Section 1103(g) of the Ethics Act except to the extent it would constitute the practice of law. Kane, 10-608 September 2, 2010 Page 4 Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office or employment, or confidential information received by being in the public position, 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 Ethics Act provide in part that no person shall offer or give 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. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct or the Rules of Professional Conduct. Conclusion: As an Attorney 3 – Non-Supervisory with the Pennsylvania Office of General Counsel (“OGC”), representing the Pennsylvania Emergency Management Agency (“PEMA”) and the Office of the State Fire Commissioner, yo u would be considered a "public employee" subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your Commonwealth 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 Commonwealth employment, hereinafter referred to collectively as your “former governmental body,” would be OGC in its entirety, as well as PEMA and the Office of the State Fire Commissioner. 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. Based upon the submitted facts, you are advised that t he duties of your proposed position as a Legislative and Regulatory Consultant with the firm “L. Robert Kimball & Associates” (“the Firm”) would involve representation of the Firm before PEMA, and that such representation before PEMA would be prohibited by Section 1103(g) of the Ethics Act except to the extent it would constitute the practice of law. Lastly, 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 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 Kane, 10-608 September 2, 2010 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