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HomeMy WebLinkAbout17-508 WilliamsSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 (717) 783 -1610 1 -500- 932 -0936 ADVICE OF COUNSEL February 16, 2017 To the Requester: Mr. Richard Williams, Esquire Dear Mr. Williams: This responds to your letters received December 2016, by which you requested an advisory from the Commission ( "Commission "). 17 -508 13, 2016, and December 27, Pennsylvania State Ethics Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 STS. § 1101 et sec., would impose restrictions upon employment of an Appeals Referee ollowing termination of employment with the Pennsylvania Department of Labor and Industry. Facts: . You request an advisory from the Commission regarding the post - emplayment restrictions of the Ethics Act. You have submitted facts, the material portion of which may be fairly summarized as follows. At the time that you submitted your initial advisory request letter received December 13, 2016, you were employed as an Appeals Referee with the Pennsylvania Department of Labor and Industry ( "Department -of Labor and Industry,') in the Bethlehem Referee Office of the Unemployment Compensation Board of Review. You have submitted a copy of a job posting for the aforesaid position, which document is incorporated herein by reference. A copy of the 'ob classification specifications for the position of Appeals Referee (job code 0731t) has been obtained and is also incorporated herein by reference. You stated that you had recently been notified of your impending urlough from your Commonwealth employment as a result of a funding issue relevant to the closing of three state unemployment compensation service centers. You stated that you are licensed to practice law In Pennsylvania and that you worked almost exclusively in the area of unemployment compensation law prior to your Commonwealth employment. You further stated that you hope to seek options in the private sector within the area of unemployment compensation law. You seek guidance as to whether Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon you with regard to practicing law in the area of FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e-mail: ethicsOstate.pa.us Williams, 17 -508 February 16, 2017 Page 2 unemployment compensation law during the first year following termination of your Commonwealth employment. In particular, you pose the following questions: (1) Whether you are correct in your understanding that you would be unable to represent anyone in any capacity in the area of unemployment compensation law; (2) Whether any prohibitions or restrictions imposed upon your ability to practice unemployment compensation law in Pennsylvania would apply to your ability to practice unemployment compensation law in other states as well; (3) Whether you would be prohibited from charging for providing legal advice in the area of unemployment compensation law or would only be prohibited from providing representation in a hearing; and (4) Whether there would be any possible exceptions to the restrictions of Section 1103(8) of the Ethics Act given that you would be leaving your Commonwealth employment as the result of a furlough and not by choice. 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. As an Appeals Referee for the Department of Labor and Industry, 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 fob 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 Labor and Industry, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(8) 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 Tor one year atter he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). Williams, 17 -508 February 16, 2017 Page 3 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(8) of the Ethics Act restricts a former public official /public employee with regard to "representin g " a "person" before "the governmental body with which he has been associated." The erm "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee fiimse 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(8) 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 would be deemed to have been associated upon termination of your employment with the Department of Labor and Industry would be the Department of Labor and Industry in its entirety, including but not limited to the Unemployment Compensation Board of Review. Therefore, for the first year following termination of your employment with the Department of Labor and Industry, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the Department of Labor and Industry 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,-A-Tvice 14 -509, Confidenti- — Advice 05 -583. Williams, 17 -508 February 16, 2017 Page 4 Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first three questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from engaging in the practice of law in the area of unemployment compensation law in Pennsylvania or any other state. With regard to your fourth question, you are advised that the Ethics Act does not provide for waivers of the applicability of its restrictions. The Commission does not have the authority or discretion to grant a waiver, even in a situation involving an averred hardship. Cf., Whitlock, Opinion 04 --015; Ziegler, Opinion 98 -001; Long, Opinion 97 -010; R�chardson� ion 93 -006. 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 103(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 Governor's Code of Conduct or the Rules of Professional Conduct. Conclusion: As an Appeals Referee for the Pennsylvania Department of Labor and Industry ( "Department of Labor and Industry "), 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 sec.. Upon termination of your employment with the Department of Labor and Industry, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the Department of Labor and Industry in its entirety, including but not limited to the Unemployment Compensation Board of Review. For the first year following termination of your employment with the Department of Labor and Industry, Section 1103 {g} of the Ethics Act would apply and restrict "representation" of a "person" before the Department of Labor and Industry to the extent such representation would not constitute the practice of law. Section 1103 (8) of the Ethics Act would: not prohibit you from en aging in the practice of law in the area of unemployment compensation law in Pennsylvania or any other state. 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. Williams, 17 -508 February 16, 2017 Page 5 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 Commi"ssi"on 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. MHitfie Chief Counsel