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Home My WebLink About17-523 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO, BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL April 18, 2017 To the Requester: 17 -523 This responds to your emails of February 14, 2017, and March 1, 2017, 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 P.TS. § 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 re arding the post - mployment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are an attorney admitted to the Bar of the Supreme Court of Pennsylvania. You are currently employed as the A for Public Official E, a B of Governmental Body C. You state that you do not have an official job description for your current position as the A for Public Official E. You state that in the aforesaid position, your duties include: [certain duties]. You report directly to Public Official E's F. You have been offered work with a [type of firm] ( "the Firm "). You would not be a G in the Firm, and you would not H in any Is. You would be hired as a J to perform functions as an attorney. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment as the A for Public Official E. In particular, you pose the following questions: (1) Whether you would be permitted to lobby and interact with Governmental Body C on behalf of the Firm's clients; (2) Whether you would be permitted to lobby and interact with Political Subdivision D's K (i.e., Public Official L and his M) on behalf of Firm clients; FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethicsC2 state. pa. us Confidential Advice, 17 -523 2017 Page 2 (3) Whether you would be permitted to attend public meetings of Governmental Body C as an observer; and (4) Whether you would be prohibited from having contact with Bs of Governmental Body C and colleagues whom you consider to be friends, and if so, whether such prohibition would applyy as to any contact whatsoever, including social contact, or only as to contact where you would be asking for official action to be taken. Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of e 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 the A for Public Official E, 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. 5 1102; 51 Pa. Code § 11.1. This conclusion is based upon the sumitted facts, 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 employment as the A for Public Official E, you would become a "former public employee" subject to Section 1103(g) 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 person, with promised or actual compensation, on any matter before the governmental bodv with which he has been associated Tor one year after he leaves that o y. 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 Confidential Advice, 17 -523 April S, 2017 Page 3 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 h—imse , Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95-007. T e 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, 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 P a. mwlth. 2000), affirmed b even ivi e ourt, 569 a. 57 807 A.2d 812 002 }. Therefore, you are a ed that lobbying services that you (an attorney) would provide would be considered the practice of law. Id. The governmental body with which you would be deemed to have been associated upon termination of your employment as the A for Public Official E would be Governmental Body C in its entirety, including but not limited to the office of Public Official E. Therefore, for the first year following termination of your aforesaid public employment, 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; Confidential Advice, 17 -509, Williams, Advice 17 -508, Confidential Advice, 16 -542; Confidential Advice, 05 -583. Your specific questions shall now be addressed. In response to your first two questions, you are advised as follows. Given your status as an attorney, Section 1103(8) of the Ethics Act would not prohibit you from lobbying Governmental Body C on behalf of Firm clients. Section 1103(g) of the Ethics Act would only apply to restrict you from engaging in representation before Governmental Body C that would not constitute the practice of law. Section 1103(g) would not restrict you as to representation before other Political Subdivision D entity(ies). Section 1103(g) specifically would not restrict you from Confidential Advice, 17 -523 April 18, Pa 7 ge 4 lobbying and interacting with Political Subdivision D's K (i.e., Public Official L and his M) on behalf of Firm clients. As to your third question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from attending public meetings of Governmental Body C as an observer subject to the condition that in so doing, you would not engage in any activity(ies) that would involve representation before Governmental Body C which would not constitute the practice of law. With regard to your fourth question, you are advised that Section 1103(8) of the Ethics Act would not prohibit you from having social contact or other contact wit Bs of Governmental Body C and colleagues whom you consider to be friends as Tong as in so doing, you would not engage in representation before Governmental Body C that would not constitute the practice of law. Cf., Conti, Opinion 07 -007; Confidential Advice, 12- 521. 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 dive 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: As the A for Public Official E, a B of Governmental Body C of Political u division 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 se9. Upon termination of employment as the A for Public Official E, you would become a "former public employee' subject to Section 1103(g) of the Ethics Act. The former governmental body would be Governmental Body C in its entirety, including but not limited to the office of Public Official E. For the first year following termination of your aforesaid public employment, 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. 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. Confidential Advice, 17 -523 April 8, 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 Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writingg and must be actual) received at the Commission within thirty (30) days of the date of ►s Advice pursuant to 59 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, r � L Robin M. Hittie Chief Counsel