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HomeMy WebLinkAbout11-570 ADVICE OF COUNSEL December 21, 2011 11-570 This responds to your letters dated October 25, 2011, and November 18, 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 B Office, who in such capacity represented Commonwealth Department C, following termination of Commonwealth employment. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission regarding the post-employment restrictions of the Ethics Act. It is administratively noted that you are an attorney admitted to the Bar of the Supreme Court of Pennsylvania. You have submitted facts that may be fairly summarized as follows. From [month, year] until [month, year], you were employed as an A with the B Office, in which capacity you represented Commonwealth Department C. You have submitted copies of your official Commonwealth position description and the job classification specifications for the position of A (job code [number]), both of which documents are incorporated herein by reference. You state that you recently began working in what you describe as “a non-legal capacity” as the D for [name of business], hereinafter referred to as the “Business.” The Business provides E to the Fs of [number] Gs in [geographic location]. You state that among other things, the D reports to the H and serves as a company spokesperson, lobbyist and liaison to the Commonwealth’s regulatory agencies. The D also provides input and guidance to senior management on policy and strategic issues, regulations, and legislation. You state that the D has historically interacted primarily with [certain governmental bodies]. The Business is currently considering participating in an upcoming Request for Proposal (“RFP”) from Commonwealth Department C to expand its [type of program] known as I, which RFP shall hereinafter be referred to as “the Program Expansion RFP.” Confidential Advice, 11-570 December 21, 2011 Page 2 Based upon the above submitted facts, you ask whether, pursuant to the restrictions of Section 1103(g) of the Ethics Act, you would be permitted to engage in the following activities as the D for the Business: (1) Appearing before Commonwealth Department C on behalf of the Business with regard to the Program Expansion RFP; (2) Engaging in negotiations with Commonwealth Department C on behalf of the Business with regard to the Program Expansion RFP; (3) Submitting proposals to Commonwealth Department C which may contain your name as the D; (4) Conducting research on the Business’s behalf relative to the Program Expansion RFP; and (5) Lobbying Commonwealth Department C on the Business’s behalf relative to the Program Expansion RFP. 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. In the former capacity as an A for the B Office, 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 your Commonwealth employment, you became a “former 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). Confidential Advice, 11-570 December 21, 2011 Page 3 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.” 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 are deemed to have been associated upon termination of Commonwealth employment, hereinafter collectively referred to as your “former governmental body,” is the B Office in its entirety, as well as Commonwealth Department C. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” 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, 11-518; Marks, Advice 11-508; Kane, Advice 10-608; Rowe, Advice 10-547; Confidential Advice, 05-583. You are advised that the activities of: (1) appearing before Commonwealth Department C on behalf of the Business with regard to the Program Expansion RFP; (2) Confidential Advice, 11-570 December 21, 2011 Page 4 engaging in negotiations with Commonwealth Department C on behalf of the Business with regard to the Program Expansion RFP; and/or (3) submitting proposals to Commonwealth Department C containing your name as the D would involve representation of the Business before your former governmental body and would be prohibited by Section 1103(g) of the Ethics Act except to the extent such activities would constitute the practice of law. Section 1103(g) of the Ethics Act would not prohibit you from conducting research on the Business’s behalf relative to the Program Expansion RFP subject to the condition that in so doing, you would not engage in representation before your former governmental body. Given your status as an attorney, Section 1103(g) of the Ethics Act would not prohibit you from lobbying Commonwealth Department C on the Business’s behalf relative to the Program Expansion RFP (cf., Gmerek, supra). 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 J. Conclusion: In the former capacity as an A with the B Office, representing Commonwealth Department C, you 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 became a “former public employee” subject to Section 1103(g) of the Ethics Act. The governmental body with which you are deemed to have been associated upon termination of Commonwealth employment, hereinafter collectively referred to as your “former governmental body,” is the B Office in its entirety, as well as Commonwealth Department C. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before your former governmental body to the extent such representation would not constitute the practice of law. Based upon the submitted facts that: (1) you recently began working in what you describe as “a non-legal capacity” as the D for [name of business], hereinafter referred to as the “Business”; and (2) the Business is currently considering participating in an upcoming Request for Proposal (“RFP”) from Commonwealth Department C to expand its [type of program] known as I, which RFP shall hereinafter be referred to as “the Program Expansion RFP,” you are advised as follows. The activities of: (1) appearing before Commonwealth Department C on behalf of the Business with regard to the Program Expansion RFP; (2) engaging in negotiations with Commonwealth Department C on behalf of the Business with regard to the Program Expansion RFP; and/or (3) submitting proposals to Commonwealth Department C containing your name as the D would involve representation of the Business before your former governmental body and would be prohibited by Section 1103(g) of the Ethics Act except to the extent such Confidential Advice, 11-570 December 21, 2011 Page 5 activities would constitute the practice of law. Section 1103(g) of the Ethics Act would not prohibit you from conducting research on the Business’s behalf relative to the Program Expansion RFP subject to the condition that in so doing, you would not engage in representation before your former governmental body. Given your status as an attorney, Section 1103(g) of the Ethics Act would not prohibit you from lobbying Commonwealth Department C on the Business’s behalf relative to the Program Expansion RFP. 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