HomeMy WebLinkAbout13-560-S Teplitz
ADVICE OF COUNSEL
November 19, 2013
Honorable Robert F. Teplitz
State Senator
Pennsylvania Senate
The State Capitol
Senate Box 203015
Harrisburg, PA 17120-3015
13-560-S
Dear Senator Teplitz:
This responds to your letter dated October 7, 2013, by which you requested
supplemental advice 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 prohibitions, restrictions, or requirements upon a
Pennsylvania State Senator, who in a private capacity is an attorney licensed to practice
law in Pennsylvania, with regard to joining a Pennsylvania-based law firm as an
employee, where: (1) the law firm created a limited liability corporation to provide
government relations assistance for clients of the law firm and/or the limited liability
corporation; and (2) the Pennsylvania State Senator would not be an employee of the
limited liability corporation and would not lobby on behalf of clients of either the limited
liability corporation or the law firm itself.
Facts:
By letter dated July 22, 2013, you submitted an initial request for an
advisory from the Pennsylvania State Ethics Commission. In response to your initial
advisory request, Teplitz, Advice 13-560, was issued to you on August 19, 2013.
Advice of Counsel 13-560 was based upon submitted facts that were
summarized as follows:
In a private capacity, you are an attorney licensed to
practice law in Pennsylvania. You are in discussions with
several Pennsylvania-based law firms which you hope will
ultimately result in part-time employment at a law firm at a
salary not to exceed your salary from the Pennsylvania
Senate. If you would accept employment at one of the
aforesaid law firms, you would not be a partner in or owner
of the law firm but would be a salaried employee, most likely
with the title “Of Counsel.”
Teplitz, 13-560-S
November 19, 2013
Page 2
One of the law firms with which you are in
discussions, hereinafter referred to as “the Firm,” currently
serves as outside counsel to the Delaware River Port
Authority (“DRPA”), a bi-state transportation agency that
governs the toll bridges and the commuter train between
Pennsylvania and New Jersey. From approximately 2007 to
mid-January 2013, you served as the alternate for
Pennsylvania State Auditor General Jack Wagner on the
DRPA Board of Commissioners (“Board”). At some point
during your tenure on the DRPA Board, the DRPA went
through a competitive process to select two firms as outside
counsel. You state that you were not involved in the review
or selection process for such outside counsel other than that
you voted in favor of the selection of the Firm. You state that
you had no relationship with or anticipation of a relationship
with the Firm at the time of your vote or thereafter and that
you had little direct contact with the Firm during your tenure
on the DRPA Board.
Based upon the above submitted facts, you pose the
following questions:
(1) Whether the Ethics Act would permit you to accept a
position as a part-time salaried employee with the
Firm or another law firm;
(2) What limitations or restrictions would the Ethics Act
impose upon you in your capacity as an elected
official if you would accept such a position; and
(3) What additional reporting requirements would the
Ethics Act impose upon you if you would accept such
a position.
Teplitz, Advice 13-560, at 1-2.
Teplitz, Advice 13-560 determined that you are a public official subject to the
provisions of the Ethics Act. The Advice concluded as follows:
Section 1103(a) of the Ethics Act would not prohibit
you, in your private capacity as an attorney, from accepting a
position as a part-time salaried employee with the Firm or
another law firm. A law firm that employs you will be
considered a business with which you are associated in your
capacity as an employee. Pursuant to Section 1103(a) of
the Ethics Act, in your public capacity as a Pennsylvania
State Senator, you could have a conflict of interest under the
Ethics Act in matters that would financially impact a business
(such as a law firm) with which you are associated.
However, to the extent the activities of a state legislator
relate to “legislative actions” (introducing, considering,
debating, voting, enacting, adopting, or approving
legislation), they are constitutionally controlled and are
exempt from the purview of the Ethics Act and the
Pennsylvania State Ethics Commission. As for other
actions, you would not transgress Section 1103(a) of the
Ethics Act unless: (1) you would be consciously aware of a
private pecuniary benefit for yourself, a member of your
immediate family, or a business with which you or a member
Teplitz, 13-560-S
November 19, 2013
Page 3
of your immediate family is associated; and (2) your action(s)
would constitute one or more specific steps to attain that
benefit.
Sections 1103(b) and 1103(c) of the Ethics Act would
prohibit improper influence/understanding(s) such as with
respect to your becoming employed with any particular law
firm or work for such law firm.
As a Pennsylvania State Senator, you are required to
file annual Statements of Financial Interests in compliance
with Sections 1104 and 1105 of the Ethics Act. If you would
accept a position as a part-time salaried employee with a law
firm, then Section 1105(b)(2) of the Ethics Act would require
you to disclose on your Statements of Financial Interests
your occupation/profession as an attorney. Section
1105(b)(5) of the Ethics Act would require you to disclose on
your Statements of Financial Interests the name and
address of such law firm as a direct/indirect source of
income totaling in the aggregate $1,300 or more, assuming
that such disclosure threshold would be met. Section
1105(b)(8) of the Ethics Act would require you to disclose on
your Statements of Financial Interests any office,
directorship or employment you would have with such law
firm.
Teplitz, Advice 13-560, at 5.
In your October 7, 2013, advisory request letter, you state that you are in final
discussions with a Pennsylvania-based law firm (“the Pennsylvania-based Firm”), which
is not the particular law firm referred to in Teplitz, Advice 13-560 as “the Firm.” If you
would accept a position with the Pennsylvania-based Firm, you would be an employee
of such firm, most likely with the title “of counsel.” Several years ago, the Pennsylvania-
based Firm created a separate legal entity, formed as a limited liability corporation
(hereinafter referred to as “the LLC”), to provide government relations assistance for
clients of the Pennsylvania-based Firm and/or the LLC. You state that you would not be
an employee of the LLC and that you would not lobby on behalf of clients of either the
LLC or the Pennsylvania-based Firm itself.
In light of the above additional facts, you request a supplemental advisory as to
whether the Ethics Act would permit you to accept a position as an employee with the
Pennsylvania-based Firm, and if so, whether there would be additional limitations,
restrictions, or reporting requirements imposed upon you if you would accept such a
position.
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.
This Supplemental Advice incorporates herein by reference the quotations,
citations and commentary as to the Ethics Act set forth within Teplitz, Advice 13-560.
In considering the additional submitted facts, you are advised as follows.
Teplitz, 13-560-S
November 19, 2013
Page 4
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity
as an attorney, from accepting a position as an employee with the Pennsylvania-based
Firm. If you would accept such a position, the Pennsylvania-based Firm would be
considered a business with which you are associated in your capacity as an employee,
and pursuant to Section 1103(a) of the Ethics Act, in your public capacity as a
Pennsylvania State Senator, you could have a conflict of interest under the Ethics Act in
matters that would financially impact the Pennsylvania-based Firm. However, to the
extent the activities of a state legislator relate to “legislative actions” (introducing,
considering, debating, voting, enacting, adopting, or approving legislation), they are
constitutionally controlled and are exempt from the purview of the Ethics Act and the
Pennsylvania State Ethics Commission. See, Mann, Opinion 07-005; Confidential
Opinion, 05-002; Corrigan, Opinion 87-001. As for other actions, you would not
transgress Section 1103(a) of the Ethics Act unless: (1) you would be consciously
aware of a private pecuniary benefit for yourself, a member of your immediate family, or
a business with which you or a member of your immediate family is associated; and (2)
your action(s) would constitute one or more specific steps to attain that benefit. See,
Kistler v. State Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011).
Sections 1103(b) and 1103(c) of the Ethics Act would prohibit improper
influence/understanding(s) such as with respect to your becoming employed with the
Pennsylvania-based Firm or work for the Pennsylvania-based Firm. 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 questions
presented.
Finally, if you would accept a position as an employee with the Pennsylvania-
based Firm, then Section 1105(b)(2) of the Ethics Act would require you to disclose on
your Statements of Financial Interests your occupation/profession as an attorney.
Section 1105(b)(5) of the Ethics Act would require you to disclose on your Statements
of Financial Interests the name and address of the aforesaid firm as a direct/indirect
source of income totaling in the aggregate $1,300 or more, assuming that such
disclosure threshold would be met. Section 1105(b)(8) of the Ethics Act would require
you to disclose on your Statements of Financial Interests any office, directorship or
employment you would have with the aforesaid firm.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
As a Pennsylvania State Senator, you are a public official subject to
the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1101 et seq. Based upon the additional submitted facts that: (1) you are in final
discussions with a Pennsylvania-based law firm (“the Pennsylvania-based Firm”), which
is not the particular law firm referred to in Teplitz, Advice 13-560 as “the Firm”; (2) if you
would accept a position with the Pennsylvania-based Firm, you would be an employee
of such firm, most likely with the title “of counsel”; (3) several years ago, the
Pennsylvania-based Firm created a separate legal entity, formed as a limited liability
corporation (hereinafter referred to as “the LLC”), to provide government relations
assistance for clients of the Pennsylvania-based Firm and/or the LLC; and (4) you
would not be an employee of the LLC, and you would not lobby on behalf of clients of
either the LLC or the Pennsylvania-based Firm itself, you are advised as follows.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity
as an attorney, from accepting a position as an employee with the Pennsylvania-based
Firm. If you would accept such a position, the Pennsylvania-based Firm would be
considered a business with which you are associated in your capacity as an employee,
and pursuant to Section 1103(a) of the Ethics Act, in your public capacity as a
Pennsylvania State Senator, you could have a conflict of interest under the Ethics Act in
matters that would financially impact the Pennsylvania-based Firm. However, to the
extent the activities of a state legislator relate to “legislative actions” (introducing,
Teplitz, 13-560-S
November 19, 2013
Page 5
considering, debating, voting, enacting, adopting, or approving legislation), they are
constitutionally controlled and are exempt from the purview of the Ethics Act and the
Pennsylvania State Ethics Commission. As for other actions, you would not transgress
Section 1103(a) of the Ethics Act unless: (1) you would be consciously aware of a
private pecuniary benefit for yourself, a member of your immediate family, or a business
with which you or a member of your immediate family is associated; and (2) your
action(s) would constitute one or more specific steps to attain that benefit.
Sections 1103(b) and 1103(c) of the Ethics Act would prohibit improper
influence/understanding(s) such as with respect to your becoming employed with the
Pennsylvania-based Firm or work for the Pennsylvania-based Firm. 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 questions
presented.
If you would accept a position as an employee with the Pennsylvania-based
Firm, then Section 1105(b)(2) of the Ethics Act would require you to disclose on your
Statements of Financial Interests your occupation/profession as an attorney. Section
1105(b)(5) of the Ethics Act would require you to disclose on your Statements of
Financial Interests the name and address of the aforesaid firm as a direct/indirect
source of income totaling in the aggregate $1,300 or more, assuming that such
disclosure threshold would be met. Section 1105(b)(8) of the Ethics Act would require
you to disclose on your Statements of Financial Interests any office, directorship or
employment you would have with the aforesaid firm.
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