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Home My WebLink About17-509 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL February 16, 2017 To the Requester: 17 --509 This responds to your undated letter postmarked December 28, 2016, received December 30, 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 7 aT-.S. § 1101 et seq., would impose restrictions upon employment of the A to the Governmental Body B C following termination of employment with the Governmental Body B 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 licensed to practice law in the Commonwealth of Pennsylvania. Prior to [date you were employed with the Governmental Body B D as the A to the Governmental Body B C. You are currently the E of a [type of organizations ( "the Organization ") that will, among other thin .9s, seek to shape public policy in Pennsylvania. Your duties as the E of the Organization will Include, but not be limited -to, lobbying on behalf of the Organization's public policy goals. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would Impose prohibitions or restrictions upon you during the first year following termination of your Commonwealth employment. In particular, you seek guidance as to whether you would be permitted to act as a lobbyist for the Organization. You specifically ask for clarification as to whether the Commission adheres to the precedents established by the cases of Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003), and Gmerek v. tate Ethics Commission, 751 A.2d 1241 (Pa. Cmwlth. 2000), affirmed by evenly Eliviaed Court, 569 Pa. 579, 807 A.2d 812 (2002). 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 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us Confidential Advice, 17 -509 February 16, 201-7 Page 2 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 the A to the Governmental Body B C, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. Consequently, upon termination of Commonwealth employment, 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 bodV with which he has been associated one year after he leaves t at 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. 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 himsse f, Confidential Advice, 17 -509 February 16, 2017 Page 3 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, supra. Additionally, the Commonwealth Court of Pennsylvania has held that lobbying by a lawyer is the practice of law. Gmerek, supra. Therefore, you are advised that lobbying services that you (an attorney ) would provide would be considered the practice of law. Id. The governmental body with which you are deemed to have been associated upon termination of your Commonwealth employment is Governmental Body B in its entirety. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before Governmental Body B to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05 -008; Confidential Advice, 16 -542; Pimento/, Advice 16- 522; _Ra��, Advice 14 -509; Confidential Advice 05 -583. Given your status as an attorney, Section 11 03(Q) of the Ethics Act would not prohibit you from providing lobbying andlor other legal services in matter(s) before Governmental Body B (cf., Shaulis, supra; Gmerek, supra). 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 hereof 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 Rules of Professional Conduct. Conclusion: In the former capacity as the A to the Governmental Body B C, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et ss., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.- et seq. Upon termination of your Commonwealth employment, you became a former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is Governmental Body B in its entirety. For the first year following termination of your Commonwealth employment, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person" before Governmental Body B to the extent such representation would not constitute the practice of law. Given your status as an attorney, Section 1103(g) of the Ethics Act would not prohibit you from providing lobbying and/or other legal services in matter(s) before Governmental Body B. 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. Confidential Advice, 17 -509 February 16, 0 7 Page 4 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 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