HomeMy WebLinkAbout12-521
ADVICE OF COUNSEL
March 28, 2012
12-521
This responds to your letter dated February 3, 2012, 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 the employment or social
conduct of the Political Subdivision A Public Official B following termination of service
with Political Subdivision A.
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.
Your term of office as the Political Subdivision A Public Official B expired on
[date]. As the Public Official B, you had the responsibility to [perform certain duties] and
the authority to [perform certain functions]. In your capacity as the Public Official B, you
served on the following Cs: [enumerated list of Cs].
You seek guidance as to whether Section 1103(g) of the Ethics Act would
impose any restrictions upon you following termination of your service as the Political
Subdivision A Public Official B, and if so, for what length(s) of time. In particular, you
pose the following questions:
(1) Whether you would be prohibited from speaking on a personal basis with:
(a) Any employee of the D of the Public Official B;
(b) Any employee of Political Subdivision A;
(c) Any employee or E of a Political Subdivision A C on which you
served or on which you did not serve;
(d) Any employee or E of an F on which you served or on which you
did not serve; or
(e) Any employee or E of a G on which you served or on which you did
not serve;
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March 28, 2012
Page 2
(2) Whether you would be prohibited from speaking with any employee of the
D of the Public Official B for business purposes involving the D of the
Public Official B hiring you as an employee or contracting with you as a
sole proprietor attorney/consultant;
(3) Whether you would be prohibited from speaking with any employee of
Political Subdivision A for business purposes involving Political
Subdivision A hiring you as an employee or contracting with you as a sole
proprietor attorney/consultant;
(4) Whether you would be prohibited from speaking with any employee or E of
a Political Subdivision A C on which you served for business purposes
involving such C hiring you as an employee or contracting with you as a
sole proprietor attorney/consultant;
(5) Whether you would be prohibited from speaking with any employee or E of
a Political Subdivision A C on which you did not serve for business
purposes involving such C hiring you as an employee or contracting with
you as a sole proprietor attorney/consultant;
(6) Whether you would be prohibited from speaking with any employee or E of
an F on which you served for business purposes involving such F hiring
you as an employee or contracting with you as a sole proprietor
attorney/consultant;
(7) Whether you would be prohibited from speaking with any employee or E of
an F on which you did not serve for business purposes involving such F
hiring you as an employee or contracting with you as a sole proprietor
attorney/consultant;
(8) Whether you would be prohibited from speaking with any employee or E of
a G on which you did not serve for business purposes involving such G
hiring you as an employee or contracting with you as a sole proprietor
attorney/consultant;
(9) Whether you would be prohibited from being hired by any corporation or
business entity that currently contracts with:
(a) The D of the Public Official B;
(b) Political Subdivision A;
(c) Political Subdivision A Cs;
(d) Any Fs; or
(e) Any G;
(10) Whether you would be prohibited from representing a client that wants to
contract with:
(a) The D of the Public Official B;
(b) Political Subdivision A;
(c) A Political Subdivision A C;
(d) An F; or
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March 28, 2012
Page 3
(e) A G;
(11) Whether you would be prohibited from representing a client that wants to
contract with or already has a current contract with the H;
(12) Whether you would be prohibited from representing a client that wants to
contract with or already has a current contract with any I in Political
Subdivision A or with any Commonwealth governmental subdivision other
than Political Subdivision A and its Cs and Js; and
(13) Whether you would be prohibited from being hired as an employee of or
contracting as a sole proprietor attorney/consultant with any I in Political
Subdivision A or with any Commonwealth governmental subdivision other
than Political Subdivision A and its Cs and Js.
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 the Political Subdivision A Public Official B, you would
be considered a “public official” subject to the Ethics Act and the Regulations of the
State Ethics Commission.
Consequently, upon termination of service with Political Subdivision A, you
became a “former public official” 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
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March 28, 2012
Page 4
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.
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).
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).
Based upon the submitted facts, the governmental body with which you are
deemed to have been associated upon termination of service with Political Subdivision
A, hereinafter collectively referred to as your “former governmental body,” consists of:
(1) the D of the Public Official B in its entirety; (2) all Js on which you served, whether
Fs, Gs, or other Js; and (3) all Cs whose Es are considered public officials subject to the
Ethics Act and for which you served as an E. Therefore, for the first year following
termination of your service with Political Subdivision A, 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, 11-570; Confidential
Advice, 11-518; Marks, Advice 11-508; Kane, Advice 10-608; Rowe, Advice 10-547;
Confidential Advice, 05-583.
Your specific questions shall now be addressed.
In response to your first question, you are advised as follows. Section 1103(g) of
the Ethics Act would not prohibit you from speaking on a personal basis with: (1)
employee(s) of the D of the Public Official B; (2) employee(s) of Political Subdivision A;
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March 28, 2012
Page 5
(3) employee(s) or E(s) of a Political Subdivision A C on which you served or on which
you did not serve; (4) employee(s) or E(s) of an F on which you served or on which you
did not serve; or (5) employee(s) or E(s) of a G on which you served or on which you
did not serve, as long as in so doing, you would not engage in representation before
your former governmental body that would not constitute the practice of law. Cf., Conti,
Opinion 07-007.
With regard to your second, third, fourth, and sixth questions, you are advised as
follows. Section 1103(g) of the Ethics Act would not prohibit you from speaking with
employee(s) or E(s) of entity(ies) included within your former governmental body as
delineated above for the purpose of being hired as an employee. Per State Ethics
Commission precedents, Section 1103(g) of the Ethics Act does not prohibit the
appointment/rehiring of a former public official/public employee to a public office or
position of public employment with the former governmental body. Confidential Opinion,
93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 and 97-010-R;
McGlathery, Opinion 00-004. Section 1103(g) of the Ethics Act would not apply to
prohibit you from speaking with employee(s) or E(s) of entity(ies) included within your
former governmental body for the purpose of contracting as a sole proprietor/attorney
consultant with your former governmental body to the extent that the proposed
contracted services would constitute the practice of law, but such conduct would be
prohibited to the extent that the proposed contracted services would not constitute the
practice of law.
In further response to your third question, and in response to your fifth, seventh,
and eighth questions, you are advised that Section 1103(g) of the Ethics Act would not
prohibit you from speaking with employee(s) or E(s) of entity(ies) not included within
your former governmental body as delineated above for the purpose of being hired as
an employee of or contracting to provide services to such entity(ies).
In response to your ninth question, you are advised as follows. Section 1103(g)
of the Ethics Act would not prohibit you from being hired by a corporation or business
entity that currently contracts with: (1) the D of the Public Official B; (2) Political
Subdivision A; (3) a Political Subdivision A C; (4) an F; or (5) a G. 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 activity(ies) that would involve representation of
such corporation or business before your former governmental body to the extent such
representation would not constitute the practice of law.
With regard to your tenth, eleventh, and twelfth questions, you are advised as
follows. Section 1103(g) of the Ethics Act would not apply to prohibit you from
representing a client that wants to contract with or has a current contract with your
former governmental body as delineated above to the extent that your activity(ies)
would constitute the practice of law, but such conduct would be prohibited to the extent
that your activity(ies) would not constitute the practice of law and would constitute
representation before your former governmental body. Section 1103(g) of the Ethics
Act would not prohibit you from representing a client that wants to contract with or has a
current contract with a governmental entity that is not included within your former
governmental body.
As to your thirteenth question, you are advised that Section 1103(g) of the Ethics
Act would not prohibit you from being hired as an employee of or contracting as a sole
proprietor attorney/consultant with a governmental entity that is not included within your
former governmental body as delineated above. 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 activity(ies) that would involve representation of such governmental
entity before your former governmental body to the extent such representation would
not constitute the practice of law.
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March 28, 2012
Page 6
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) of the Ethics Act only and has not addressed other
Sections of the Ethics Act about which you have not inquired. 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.
Conclusion:
In the former capacity as the Political Subdivision A Public Official
B, you would be considered a “public official” 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
service with Political Subdivision A, you became a “former public official” subject to
Section 1103(g) of the Ethics Act. Based upon the submitted facts, the governmental
body with which you are deemed to have been associated upon termination of service
with Political Subdivision A, hereinafter collectively referred to as your “former
governmental body,” consists of: (1) the D of the Public Official B in its entirety; (2) all
Js on which you served, whether Fs, Gs, or other Js; and (3) all Cs whose Es are
considered public officials subject to the Ethics Act and for which you served as an E.
For the first year following termination of your service with Political Subdivision A,
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. 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
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March 28, 2012
Page 7
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