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Home My WebLink About16-542 Confidential ADVICE OF COUNSEL July 19, 2016 16-542 This responds to your letter dated May 3, 2016, and your submission received May 12, 2016, 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 following termination of service with a B of Governmental Body C of Political Subdivision D. Facts: You request a confidential advisory from the Commission regarding the post-employment restrictions of the Ethics Act. You have submitted facts, the material portion of which may be fairly summarized as follows. You are an attorney admitted to the Bar of the Supreme Court of Pennsylvania. Since \[year\], you have owned your own law firm (the “Firm”), where your legal work focuses on E, F, and G. Your E work involves representing clients before Governmental Body C and the administration of the Political Subdivision D Public Official H. From approximately \[month, year\] through \[date\], you were employed in a temporary, part-time position as an A for Public Official I, a B of Governmental Body C. You state that Public Official I asked you to \[perform a certain activity\] on a temporary basis, with the understanding that you would continue to practice law part-time while working for her and that you would return to your E law practice full-time after \[date\]. You further state that during the time period of your aforesaid temporary employment, you continued to practice law part-time through the Firm consistent with your obligations under the J, the Ethics Act, and the Rules of Professional Conduct. You have submitted a copy of a document dated \[date\] (the “Document”), which is printed on the letterhead of Public Official I. The Document indicates that the A would \[perform certain activities\]. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment as an A for Public Official I. In particular, you ask whether the Ethics Act would impose restrictions upon you with regard to representing clients of the Firm before Governmental Body C. 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 Confidential Advice, 16-542 July 19, 2016 Page 2 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 the submitted facts are insufficient to enable a conclusive determination as to whether, in your former capacity as an A for Public Official I, you would be considered a “public employee” as that term is defined by the Ethics Act. See, 65 Pa.C.S. § 1102. This Advice assumes, without deciding, that in your former capacity as an A for Public Official I, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Based upon the aforesaid assumption, upon termination of employment as an A for Public Official I, 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. Confidential Advice, 16-542 July 19, 2016 Page 3 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 as an A for Public Official I is Governmental Body C in its entirety, including but not limited to the office of Public Official I. Therefore, for the first year following termination of your aforesaid public service, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Governmental Body C to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Pimental, Advice 16-522; Rapp, Advice 14- 509; Confidential Advice, 11-570; Confidential Advice, 05-583. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from representing clients of the Firm before Governmental Body C to the extent such representation would 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: This Advice assumes, without deciding, that in your former capacity as an A for Public Official I, 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. Based upon the aforesaid assumption, Confidential Advice, 16-542 July 19, 2016 Page 4 upon termination of employment as an A for Public Official I, you 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 I. For the first year following termination of your aforesaid public service, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Governmental Body C to the extent such representation would not constitute the practice of law. Section 1103(g) of the Ethics Act would not prohibit you from representing clients of the law firm that you own before Governmental Body C to the extent such representation would 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