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HomeMy WebLinkAbout14-540 Confidential ADVICE OF COUNSEL August 22, 2014 14-540 This responds to your letters dated July 8, 2014, and July 25, 2014, 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 restrictions upon employment of an A following termination of service with a B of Governmental Body C of Political Subdivision D. 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. On \[date\], you officially separated from your position as the A for Public Official E, a B of Governmental Body C. You have submitted a copy of a job description for the position of A for Public Official E, which document is incorporated herein by reference. Bs of Governmental Body C have approached you and requested that you serve as an F on a contractual basis with the use of Political Subdivision D G dollars. You state that you would be a contractor and not an employee and that the estimated value of any contract would be \[amount\] or less. You currently serve as an independent contractor with an entity named \[name of entity\] (the “Firm”), which is a \[type of firm\]. You state that it is likely you would bill your services through the Firm, although you could bill your services through your own name. You further state that although you are an attorney licensed to practice law in the Commonwealth of Pennsylvania, the services you would render would be directly related to H and would include \[certain matters\]. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose restrictions upon you with regard to contracting with Governmental Body C and/or its B(s) to provide services as an F. 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. Confidential Advice, 14-540 August 22, 2014 Page 2 In the former capacity as the A for Public Official E, 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 job description, which when reviewed on an objective basis, indicates 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 employment as the A for Public Official E, 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). 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, Confidential Advice, 14-540 August 22, 2014 Page 3 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 your employment as the A for Public Official E, hereinafter also referred to as your “former governmental body,” is Governmental Body C in its entirety, including but not limited to the office of Public Official E. Therefore, for the first year following termination of your public service, 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. You are advised that Section 1103(g) of the Ethics Act would prohibit you from entering into contract(s) with Governmental Body C and/or its B(s) to provide services as an F to the extent that your proposed contracted services 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. Conclusion: In the former capacity as the A for Public Official E, a B of Governmental Body C of Political Subdivision D, 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 employment as the A for Public Official E, you Confidential Advice, 14-540 August 22, 2014 Page 4 became a “former public employee” subject to Section 1103(g) of the Ethics Act. The former governmental body is Governmental Body C in its entirety, including but not limited to the office of Public Official E. For the first year following termination of your public service, 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. Section 1103(g) of the Ethics Act would prohibit you from entering into contract(s) with Governmental Body C and/or its B(s) to provide services as an F to the extent that your proposed contracted services 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