HomeMy WebLinkAbout16-507 Confidential
ADVICE OF COUNSEL
February 16, 2016
16-507
This responds to your letter dated December 11, 2015, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission (“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 of a \[type
of governmental body\] following termination of service with the \[type of governmental
body\].
Facts:
You request a confidential advisory from the 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, the material portion of which may be fairly summarized as follows.
Your term of office as an A of Governmental Body B ended on \[date\].
You have been asked to represent C in a D for Es that C expects will be needed
in conjunction with its decision to \[perform a certain activity\].
The narrow question that you have posed is whether the Ethics Act would
impose restrictions upon you with regard to representing C with respect to a D or F to
Governmental Body B after January 1, 2016.
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.
It is further initially noted that this Advice is limited to addressing the narrow
question posed.
In the former capacity as an A of Governmental Body B, you would be
considered a public official subject to the Ethics Act and the Regulations of the State
Ethics Commission.
Confidential Advice, 16-507
February 16, 2016
Page 2
Consequently, upon termination of your service as an A of Governmental Body
B, you became a “former public official” subject to Section 1103(g) of the Ethics Act.
Section 1103(g) of the Ethics Act provides as follows:
§ 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).
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.” 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 restrictions of Section 1103(g) of the Ethics Act apply for one year following
termination of service in the public position. Based upon the submitted fact that you
terminated service with Governmental Body B on \[date\], which was more than one year
ago, you are advised that the restrictions of Section 1103(g) of the Ethics Act do not
currently apply to you. Cf., Confidential Advice, 10-549; Germanio, Advice 07-599.
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 an A of Governmental Body B, you would
be considered a “public official” as that term is defined by the Public Official and
Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. (“Ethics Act”). Upon termination of
your service with Governmental Body B, you became a “former public official.” The
restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials
and former public employees, apply for one year following termination of service in the
public position. Based upon the submitted fact that you terminated service with
Governmental Body B on \[date\], the restrictions of Section 1103(g) of the Ethics Act do
not currently apply to you. 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.
Confidential Advice, 16-507
February 16, 2016
Page 3
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