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Home My WebLink About16-522 Pimental ADVICE OF COUNSEL April 7, 2016 Carlos J. Pimental, Jr., Esquire 232 William Drive Canonsburg, PA 15317 16-522 Dear Mr. Pimental: This responds to your letter dated February 9, 2016, and your submission received February 22, 2016, by which you requested an 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 a Criminal Tax Investigator Supervisor following termination of employment with the Pennsylvania Department of Revenue. Facts: You request an advisory from the Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On June 19, 2015, you retired from your employment as a Criminal Tax Investigator Supervisor with the Pennsylvania Department of Revenue (“Department of Revenue”). You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Criminal Tax Investigator Supervisor (job code 70853) has been obtained and is also incorporated herein by reference. You have been licensed to practice law in Pennsylvania since 1988. You state that you have not engaged in the practice of law in the past and that you were not employed as an attorney with the Commonwealth. You state that you might assist your wife pro bono in some matters pending before the Pennsylvania State Civil Service Commission and the United States District Court for the Western District of Pennsylvania. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your Commonwealth employment. In particular, you ask whether the Ethics Act would impose restrictions upon you with regard to engaging in the practice of law, either pro bono or for compensation, with respect to matters before Federal Courts or state agencies other than the Department of Revenue. Pimental, 16-522 April 7, 2016 Page 2 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 a Criminal Tax Investigator Supervisor for the Department of Revenue, 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 position description and the job classification specifications, which when reviewed on an objective basis, indicate 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 your employment with the Department of Revenue, 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. Pimental, 16-522 April 7, 2016 Page 3 "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. 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). The governmental body with which you are deemed to have been associated upon termination of your employment with the Department of Revenue is the Department of Revenue in its entirety. Therefore, for the first year following termination of your employment with the Department of Revenue, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Department of Revenue to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Rapp, Advice 14-509; Confidential Advice, 11-570; Jones, Advice 11-539; 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 not prohibit you from engaging in the practice of law, either pro bono or for compensation, with respect to matter(s) before Federal Courts, the Department of Revenue, state agencies other than the Department of Revenue, or any other entity(ies). 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 Pimental, 16-522 April 7, 2016 Page 4 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 Governor’s Code of Conduct or the Rules of Professional Conduct. Conclusion: In the former capacity as a Criminal Tax Investigator Supervisor for the Pennsylvania Department of Revenue (“Department of Revenue”), 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 your employment with the Department of Revenue, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Department of Revenue in its entirety. For the first year following termination of your employment with the Department of Revenue, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Department of Revenue to the extent such representation would not constitute the practice of law. Section 1103(g) of the Ethics Act would not prohibit you from engaging in the practice of law, either pro bono or for compensation, with respect to matter(s) before Federal Courts, the Department of Revenue, state agencies other than the Department of Revenue, or any other entity(ies). 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