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HomeMy WebLinkAbout16-568 Confidential04 fv$ ST.ATE ETHICS COMMISSION 309 FINANCE BUILDING RO, BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL December 20, 2016 To the Requester: 16 -568 This responds to your letter dated November 17, 2016, by which you requested a confidential advisory opinion from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 P TS. § 1101 et seq., would impose restrictions upon employment of an A following termination of employment with Commonwealth Department B. Facts: You request a confidential advisory opinion 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 that may be fairly summarized as follows. Effective [date], you resigned from your employment as an A with Commonwealth Department B in the C Bureau within the D Office. You have submitted a copy of a position description ( "the Position Description ") for the position of A, which document is incorporated herein by reference. A copy of the job classification specifications for the position of A (job code [number]) has been obtained and is also incorporated herein by reference. You state that in your former Commonwealth position, all of your duties were subject to direct oversight by the E of the F Division, whose decisions were subject to oversight by the G of the C Bureau. You further state that the Position Description is not entirely accurate and that the position of A has never been responsible for the administration of Hs or any other activity relating to any Hs. You are currently employed with a law firm named [name of law firm] ( "the Law Firm "). The C Bureau has expressed interest in entering into a contract ( "the Proposed Contract ") with the Law Firm for assistance with upcoming [type of prIff cts] to ensure that deaddlines can be met in the absence of other Commonwealth available to complete the work. You state that the possibility of the C Bureau contracting with the Law Firm was not part of your employment negotiations with the Law Firm. You state that all payment for services that you would perform under the Proposed Contract would FAX: (717) 787 -0806 0 Weis Site: www.ethics.state.pa.us 0 e -mail: ethicsro state,pa.us Confidential Advice, 16 -568 December 20, 20 Page 2 go directly to the Law Firm's I and that ou would receive no direct or indirect payment whatsoever as a result of the Proposed Contract. You further state that the Proposed Contract would merely allow the Law Firm to be compensated for your hours of work spent on state projects during your regular work day. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing services for the Commonwealth pursuant to the Proposed Contract. Discussion- It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e ics 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 disc osed all of the material facts. In the former capacity as an A for Commonwealth Department B, you would be considered a "public employee" subJ'ect 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 tie 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 Commonwealth Department B, you became a "former public employee" subject to Section 1103(8) of the Ethics Act. While Section 11030 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 er�son, with promised or actual compensation, on any matter before the governmental body with which he has been associated 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 Confidential Advice, 16 -568 December 20, Page 3 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 officiallpublic 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 iimseff, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95-007. 1 he term "represent" is also broadly defined to prohibit acting on behalf of any person in pny 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, t e Commonwealth Court of ennsy vania 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 ourt, 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 Commonwealth Department B is Commonwealth Department B in its entirety. For the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before Commonwealth Department B to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05 -008; Confidential Advice, 16 -542; Pimental, Advice 16 -522; Rapp, Advice 14 -509. The submitted facts do not indicate whether the work you would perform under the Proposed Contract would constitute the practice of law. Therefore, you are generally advised that during the first year following termination of your employment with Commonwealth Department B, Section 1103(8) of the Ethics Act would prohibit you from engaging in any activity(ies) pursuant to the Proposed Contract that would involve representation before Commonwealth Department B to the extent such representation would not constitute the practice of law. However, Section 1103(8) of the Ethics Act would not prohibit you from performing services that would constitute the practice of law. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(8) only. It is expressly assumed that there has been no use of authority of office or employment, or confidential information received by being in Confidential Advice, 16 -568 December 20, 20 Page 4 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. Specifically not addressed herein is the applicability of the J or the Rules of Professional Conducf. Conclusion: In the former capacity as an A for Commonwealth Department B, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se , and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et secupon termination of your employment with Commonwealth Department B, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is Commonwealth Department B in its entirety. For the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before Commonwealth Department B to the extent such representation 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 writingg and must be actuall received at the Commission within thirty (30) days of the date of this Advice C 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. Sinc rely, Zj�-04 !r Robin M. Hittie Chief Counsel