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HomeMy WebLinkAbout11-518 Confidential ADVICE OF COUNSEL April 13, 2011 11-518 This responds to your letter dated February 25, 2011, by which you requested a confidential 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 A with the [type of office] of a [political subdivision] following termination of service with the [type of office]. Facts: You request a confidential 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 currently serve as an A with the B Office of Political Subdivision C, in which capacity you are in charge of the [type of unit]. You state that your current job responsibilities include, but are not limited to, [performing certain work]. The [name of board] (“the Board”) supervises the [name of facility] (“the Facility”) for Political Subdivision C. You note that the Board was created through legislative action by the Pennsylvania General Assembly. See, [cite]. You state that your current employment responsibilities as an A with the B Office have never been associated with the Board. A corporation named [name of corporation] (“the Corporation”) is currently contractually engaged with the Board to operate the Facility. You state that the Corporation has approached you and asked you to consider leaving your current employment to accept a position with the Corporation as a D in charge of Es. You have submitted a copy of the position description for the aforesaid position, which document is incorporated herein by reference. You state that as a D in charge of Es, you would report directly to the F of the Facility, and your responsibilities would include [performing certain activities]. You further state that corporate officials of the Corporation, and not the D in charge of Es, would be the individuals who would make personal appearances before the Board, negotiate with and lobby the Board, and submit bid or contract proposals to the Board. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to accepting employment as a D in charge of Es for the Corporation. 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 Confidential Advice, 11-518 April 13, 2011 Page 2 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 A for the B Office, you would be considered a public official/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; [cites]. Consequently, upon termination of service with the B Office, you would become a former public official/public employee 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,” “governmental body,” 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." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "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 Confidential Advice, 11-518 April 13, 2011 Page 3 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 service with the B Office would be the B Office in its entirety. Cf., [cites]. Therefore, for the first year following termination of your service with the B Office, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before the B Office to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Marks, Advice 11- 508; Kane, Advice 10-608; Rowe, Advice 10-547; Confidential Advice, 05-583. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a D in charge of Es for the Corporation. However, during the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve representation before the B Office to the extent such representation would not constitute the practice of law. 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; 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 Rules of Professional Conduct or the G. Conclusion: As an A with the B Office of Political Subdivision C, you would be considered a public official/public employee subject to the Public Official and Employee Confidential Advice, 11-518 April 13, 2011 Page 4 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. U pon termination of service with the B Office, you would become a former public official/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 service with the B Office would be the B Office in its entirety. For the first year following termination of your service with the B Office, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before the B Office to the extent such representation would not constitute the practice of law. The restrictions as to representation outlined above must be followed. 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 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