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HomeMy WebLinkAbout85-589 WelshMr. Richard J. Welsh Greenlee Associates P.O. Box 291 Harrisburg, PA 17108 Mailing Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 October 16, 1985 ADVICE OF COUNSEL 85 -589 Re: Attorney, Office of State Senator, Representation, Sec. 3(e), Dear Mr. Welsh: This responds to your letter of September 24, 1985, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law upon termination of your employment with the Office of a Pennsylvania State Senator. Facts: You indicate that you are the former legal counsel to Pennsylvania State Senator Vincent Fumo. You served in this capacity from December, 1984 until September 3, 1985. Prior to this employment, you served in a similar capacity for State Senator Craig Lewis until November 30, 1984. You indicate that you are currently practicing law as a sole practitioner and that you have also become associated with Greenlee Associates in the practice of governmental relations. You do not indicate what functions you will perform in this respect. As legislative counsel, you were responsible, generally for reviewing proposed legislation, performing legal research and discussing legislative issues on the senator's behalf with various individuals and associations. You ask what, if any, restrictions are imposed upon your future activities by the State Ethics Act. You are aware of Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Cmwlth. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982) which deals with the applicability of Section State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Richard J. Welsh October 16, 1985 Page 2 3(e) of the Ethics Act to attorneys in the regulation of their practice of law. However, you seek clarification of the question of the applicability of the Ethics Act to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law and new work or employment. Discussion: In light of the decision in Pennsylvania Public Utility Commission Bar Association, supra, where the Court held that Section 3(e) of the Ethics Act, 65 P.S. 403(e), was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct, the State Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3(e) of the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct before the Office of State Senator Fumo, hereinafter the Office, the agency or entity with which you were associated, would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 - 1332. In this note, the Court indicates that any activity in which the attorney proports to render professional services to a client may only be regulated by the Supreme Court. The State Ethics Commission, therefore, must conclude that to the extent that you would represent a client, as a lawyer, before the Office or otherwise, Section 3(e) of the Ethics Act would not operate to bar such activity. If, however, the activities that you intend to undertake before the Office -- the governmental body with which you have been associated while employed by the State Senate -- do not fall within the category of the "practice of law" the prohibitions of Section 3(e) of the Ethics Act might be applicable. Activities which might be considered, by the Commission, not to constitute the "practice of law" or to be undertaken in the capacity as lawyer - client, would include activities such as lobbying and negotiating on contracts. In any event, you should be advised that your activity, even if Section 3(e) of the Ethics Act were to be applicable, would not regulate your conduct, except with respect to the Office -- the "governmental body" with which you are "associated" while employed by the State Senate. Additionally, the term governmental body could also include any committee of which the senator was in a leadership position and where you had influence or responsibility as a result thereof. While you had not indicated such a situation existed, you are welcome to seek the further advice of the Commission in the future, should a question of this nature arise. We also note that in November, 1985 any Mr. Richard J. Welsh October 16, 1985 Page 3 similar restrictions that may have been applicable in relation to the Office of State Senator Lewis will be terminated, this is so because the one year waiting period will have elapsed. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Office of Senator Fumo would not be restricted by Section 3(e) of the Ethics Act. In relation to what specific restrictions would be imposed by the Ethics Act upon activity that does not constitute the practice of law, the Ethics Act generally prohibits a former public employee from representing any person before his former governmental body. As a legal counsel to a State Senator, you were a public employee within the purview of the Ethics Act. 65 P.S. §402. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, that is the Office and any committee as previously noted, including, but not limited to, negotiations or renegotiations on contracts with the Office and the Committee(s); 2. Attempts to influence the Office and the Committee(s); 3. Participating in any matters before the Office and the Committee(s) over which you had supervision, direct involvement, or responsibility while employed by the State Senate; 4. Lobbying, that is representing the interests of any person or employer before the Office and the Committee(s) in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. Mr. Richard J. Welsh October 16, 1985 Page 4 The Commission, has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Office or Committee(s), constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the State Senate, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Office or the Committee(s) so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office or the Committee(s). Once again, however, your activity in this respect should not be revealed to the Office or the Committee(s). Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office or the Committee(s) to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Office or the Committee your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a legal counsel to a Pennsylvania State Senator, you were a public employee within the State Ethics Act. Upon your termination of employment you became a former public employee. Insofar as your future activities constitute the practice of law, the Ethics Act will not prohibit your representation of any person. If, however, your activity does not constitute the practice of law, the Ethics Act restrictions, as outlined herein, would be applicable to your activity before your former governmental body for a period of one year. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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. Mr. Richard J. Welsh October 16, 1985 Page 5 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Sincerely, ohn J. .ntino Gener- Counsel