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Home My WebLink About12-500 ADVICE OF COUNSEL January 5, 2012 12-500 This responds to your letter dated November 30, 2011 (postmarked December 1, 2011, and received December 5, 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 a former A solicitor with regard to entering into a consulting agreement with the new A solicitor to provide, for a fee, advice and counsel on business of the [political subdivision]. 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 are currently the A Solicitor for the [name of political subdivision] (the “Political Subdivision”), located in [name of county], Pennsylvania. You state that you anticipate retiring in the near future and that you have been asked if you would provide consulting services for a fee to assist the new A Solicitor in the conduct of the business of the A Solicitor’s Office. You state that the Political Subdivision solicitorship may be given by the Political Subdivision’s governmental body to a law firm and that such law firm would then enter into an agreement with you to provide the aforesaid consulting services. Based upon the above submitted facts, you seek guidance as to whether Section 1103(g) of the Ethics Act would permit you, following termination of your service as the A Solicitor, to enter into a consulting agreement with the new A Solicitor to provide advice and counsel on Political Subdivision business for a fee. 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. Preliminarily, it is noted that the submitted facts do not indicate whether, in your capacity as the A Solicitor for the Political Subdivision, you are retained by or are an employee of the Political Subdivision. This Advice assumes, without deciding, that in Confidential Advice, 12-500 January 5, 2012 Page 2 your capacity as the A Solicitor for the Political Subdivision, you are a public employee subject to the Ethics Act. See, P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999) (holding that a solicitor who is employed by a governmental body and not just on retainer would be considered a “public employee” subject to the provisions of the Ethics Act); cf., C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 550 Pa. 686, 704 A.2d 640 (1997) (holding that retained--as opposed to employed--solicitors are not public officials/public employees under the Ethics Act). Based upon the aforesaid assumption, upon termination of employment with the Political Subdivision, you would become 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). 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 Advice, 12-500 January 5, 2012 Page 3 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. During the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) generally would prohibit a former public official/public employee from contracting with the former governmental body (see, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005) or providing consulting services constituting representation before the former governmental body. 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). The governmental body with which you would be deemed to have been associated upon termination of employment with the Political Subdivision, hereinafter collectively referred to as “your former governmental body,” would include: (1) the A Solicitor’s Office in its entirety; and (2) all other governmental body(ies) by which the A Solicitor is employed or to which the A Solicitor is appointed and subdivisions and offices within such governmental body(ies). Therefore, for the first year following termination of your employment with the Political Subdivision, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before your former governmental body as identified above, to the extent such representation would not constitute the practice of law. Section 1103(g) of the Ethics Act would not apply to prohibit you from entering into a consulting agreement with the new A Solicitor to provide advice and counsel on Political Subdivision business for a fee to the extent that your activity(ies) would 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 B. Conclusion: This Advice assumes, without deciding, that in your capacity as the A Solicitor for the [name of political subdivision] (the “Political Subdivision”), located in [name of county], Pennsylvania, you are a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the aforesaid assumption, upon termination of employment with the Political Subdivision, 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 employment with the Political Subdivision, hereinafter collectively referred to as “your former governmental body,” would include: (1) the A Solicitor’s Office in its entirety; and (2) all other governmental body(ies) by Confidential Advice, 12-500 January 5, 2012 Page 4 which the A Solicitor is employed or to which the A Solicitor is appointed and subdivisions and offices within such governmental body(ies). For the first year following termination of your employment with the Political Subdivision, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before your former governmental body as identified above, to the extent such representation would not constitute the practice of law. Section 1103(g) of the Ethics Act would not apply to prohibit you from entering into a consulting agreement with the new A Solicitor to provide advice and counsel on Political Subdivision business for a fee to the extent your activity(ies) would 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