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HomeMy WebLinkAbout17-551 Pritzkerr STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL August 4, 2017 To the Requester: Ms. Rachael J. Pritzker, Esquire 17551 Dear Ms. Pritzker: This responds to your emails of June 26, 2017, and June 27, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act "Ethics Act "), 65 CGS. § 1101 et seq., would impose restrictions upon employment of a Legislative Counsel following termination of service with a Member of the Council ( "City Council') of the City of Philadelphia ( "City "). Facts: You request an advisory from the Commission regarding the post - empToyment 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. At the time that you submitted your inquiry, you were employed as a Legislative Counsel for the Honorable Allan Domb ( "Councilman Domb "), a Member of City Council. You stated that you worked at the pleasure of Councilman Domb, and you indicated that you were unable to provide an official position description for your position as a Legislative Counsel for Councilman Domb. You stated that you would be concluding your service in your formal role with the office of Councilman Domb as of July 3, 2017. You stated that you would be starting a new job outside of City government that would involve building out the development arm for a Keller Williams in Fishtown that is owned by two of your business partners. You further stated that in relation to your new job, you and your two business partners would own a limited liability company { "the LLC" i'd under the existing Keller Williams umbrella. You would own 50% of the LLC. You wou re resent the LLC as General Counsel and as the Director of Development for Keller Williams Fishtown. You additionally stated that your development projects would utilize land bank properties, RDA properties, and the like, which all include communication and collaboration with District Council Members during different procedural checkpoints. You stated that upon leaving your City employment as a Legislative Counsel for Councilman Domb, you would like to stay on in some capacity as a consultant in order FAX: (717) 787 -0806 0 Web Site: www. ethics. state. pa. us 0 e -mail: ethics�.pa.us Pritzker, 17 -551 uA gust 4, 2017 Page 2 to help him and his staff work on some existing and potential legislation as well as help with various other office- related needs. Based upon the above submitted facts, you requested an advisory setting out what you may and may not do with regard to your roles as a consultant, General Counsel for the LLC, and Director of Development for Keller Williams Fishtown so that you do not do anything which jeopardizes your law license, violates the Ethics Act, or causes similar issues. In particular, you posed the following questions: (1) In what capacity would you be able to ethically and legally provide consulting services to Councilman Domb; (2) Whether it would be permissible for you to be paid compensation from Councilman Domb's campaign fund or his personal funds for providing consulting services to him; (3) What would you be able to ethically and legally do with regard to meeting with Members of City Council in your new role to discuss your development projects; (4) Whether you should obtain a lobbying license so that you can interface with City Council, schedule and attend meetings with City Council Members, and attend publicly held City Council hearings and Council Sessions, and what limitations should you be aware of as far as lobbying is concerned; and (5) What would your law license allow you to do specifically in relation to representing Keller Williams Fishtown and your development company and team in meeting with City Council Members to discuss potential development projects and responding to RFPs to obtain City -owned or maintained real estate (i.e., RDA and Landbank). 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. In your capacity as a Legislative Counsel for Councilman Domb, 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 Consequently, upon termination of your employment as a Legislative Counsel for Councilman Domb, you would become 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 ep rsora, with Pritzker, 17 -551 u4, 2017 Page 3 promised or actual compensation, on any matter before the ,governmental bodv with which he has been associated 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 an yy activity which includes, but is not limited to, the folrowing: 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." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "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 ublic employee hims�, 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 pny activity. During the one -year period of applicability of Section 1103(g) of the Ethics Act, Section 1103 {g) generally would prohibit a former public official /public employee from contracting ith the former governmental bodyy see, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93- 005�7or providing consulting services constituting representation be ore the tormer governmental body. 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). Pritzker, 17 -551 u�4, 2017 Page 4 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 b even) divided Court, 589 Pa. 579, 807 A.2d 812 2002). Therefore, you area vise 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 a Legislative Counsel for Councilman Domb would be City Council in its entirety, including but not limited to the office of Councilman Domb. Therefore, for the first year following termination of your aforesaid public employment, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a 'person" before City Council to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05 -008; Confidential Advice, 17 -523; Confidential Advice, 17 -509; Will mai s, Advice 17 -508; Confidenfial vice, 05 -583. Your specific questions shall now be considered. In response to your first question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from providing the proposed consulting services to Councilman Domb for promised or actual compensation except to the extent such services would constitute the practice of law. In response to your second question, you are advised that to the extent the proposed consulting services would be prohibited by Section 1103(g) of the Ethics Act, the particular source of funds used to compensate you would be irrelevant and would not nullify the prohibition. (This Advice does not address the permissible and impermissible uses of campaign funds generally, as such issues are governed by In response to your third, fourth, and fifth questions, you are advised that Section 1103(8) of the Ethics Act would prohibit you from interfacing with City Council or scheduling meetingslmeeting with Members of City Council in your new role except to the extent your activity(ies) would constitute the practice of law. Section 1103(8) of the Ethics Act would not prohibit you from attending public meetings of City Council as an observer subject to the condition that in so doing, you would not engage in any activity(ies) that would involve representation before City Council which would not constitute the practice of law. As noted above, lobbying by a lawyer is the practice of law, and therefore, Section 1103(8) of the Ethics Act would not prohibit you from engaging in lobbying. Gmerek, supra. As the Commission lacks jurisdiction to administer, interpret, or enCity requirements pertaining to lobbying at the City level, this Advice does not address whether you should obtain a lobbying license. 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 n 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 thics Act provide in part that no person shall offer or give to a pubic officiallpublic 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 officiallpublic 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 Pritzker, 17-551 August 4, 2017 Page 5 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Rules of Professional Conduct. Conclusion: As a Legislative Counsel for the Honorable Allan Domb Councilman Domb"'), a Member of the Council ( "City Council" ) of the City of hiladelphia "Cityy"), you would be considered a "public employee" subject to the Public Official and mployee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sec.., and the Regulations of the State Ethics Commission, 51 Pa. Code § 1'1.1 et seq. Upon termination of employment as a Legislative Counsel for Councilman Domb, you would become a "former public employee' subject to Section 1103 (8) of the Ethics Act. The former governmental body would be City Council in its entirety, including but not limited to the office of Councilman Domb. For the first year following termination of your aforesaid public employment, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person" before City Council 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 Advice pursuant to 57 Pa. Code § 73.2(h), The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (777- 787- 080fi). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hattie Chief Counsel