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