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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
,tune 13, 2018
To the Requester:
Mr. Leland C. Clark, Esquire
Dear Mr. Clark:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pasiov
1114 &91 FA
This responds to your letter dated May 26, 2018, 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
PAS. § 1101 et seq., would impose restrictions upon employment of a School
Director for the Butler Area School District, who is an attorney, following termination of
service as a School Director.
Facts: You request an advisory from the Commission based upon submitted
a� chat may be fairly summarized as follows.
You are an attorney admitted to the Bar of the Supreme Court of Pennsylvania.
On December 1, 2015, you began serving as a School Director for the Butler
Area School District ( "School District "), located in Butler County, Pennsylvania. In April
2018, you were offered a position as an associate with the law firm of Dillon
McCandless King Coulter & Graham (the "Law Firm "), which serves as the Solicitor for
the School District. You resigned from your seat on the School District School Board
effective April 16, 2018, and you are currently working as an associate with the Law
Firm.
You seek guidance as to whether Section 1103(g) of the Ethics Act would
impose prohibitions or restrictions upon you with regard to performing work for the Law
Firm on matter(s) related to the School District during the first year following termination
of your service as a School Director for the School District.
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
Clark, 18 -537
T13, 2018
Page 2
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 a School Director for the School District, you would be
considered a "public official subject to the Ethics Act and the Regulations of the State
Ethics Commission.
Consequently, upon termination of your service as a School Director for the
School District, you became a "former public official" subject to Section 1103(8) 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 er�son, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that boa-Y.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "re resent," "person," "governmental body," 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 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." 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.
Clark, 18 -537
Tune 13, 2018
Page 3
65 Pa.C.S. § 1102.
Section 1103(g) of the Ethics Act restricts a former public official/public employee
with regard to "re resenting" 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 himself,
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.
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. Penns Ivania State Ethics Commission, 574 Pa. 680,
833 A.2d 123 (2003 ), overruled in art by, Yocum v. Pennsylvania Gaming _Control
Board, 639 Pa. 521, 161 A.3d 228 (2017).
The governmental body with which you are deemed to have been associated
upon termination of your service as a School Director for the School District is the
School District School Board in its entirety. Therefore, for the first year followin
termination of your service as a School Director for the School District, Section 1103(g�
of the Ethics Act would apply and restrict "representation" of a "person" before thhe
School District School Boar the extent such representation would not constitute the
practice of law. Cf., Moore, Opinion 05-008; Pritzker, Advice 17-551; Confidential
Advice, 17 -523; Cofiffdential Advice, 17 -509; Willi ams, Arc vice 17 -508.
You are advised that during the first year followin termination of your service as
a School Director for the School District, Section 1103 g) of the Ethics Act would not
pprohibit you from performing work for the Law Firm on matter(s) related to the School
District subject to the condition that in so doing, you would not engage in any
activity(ies) that would involve representation before the School District School Board
which would not constitute the practice of law.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(8) only. It is expressly assumed that there has been no
use of authority of office or employment, or confidential information received by bein in
the public position, for a private pecuniary benefit as prohibited by Section 11 03(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 officiallpublic employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
off iciallpublic 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 Rules of Professional Conduct.
Conclusion: In the former capacity as a School Director for the Butler Area
School is rict ( "School District "), located in Butler County, Pennsylvania, you would be
considered a "public official" subject to the Public Official and Employee Ethics Act
c"Ethics Act "), 65 Pa.C.S. § 1101 et sec., and the Regulations of. the State Ethics
ommission, 51 Pa. Code § 11.1 et seq. Upon termination of your service as a School
Director for the School District, you became a "former public official" subject to Section
1103(g) of the Ethics Act. The former governmental body is the School gistrict School
Clark, 18 -537
Tune 13, 2018
Page 4
Board in its entirety. For the first year following termination of your service as a School
Director for the School District, Section 1103(g) of the Ethics Act would apply and
restrict "representation" of a "person" before the School District School Board to the
extent such representation would not constitute the practice of law. Section 1103(g) of
the Ethics Act would not prohibit you from performing work on matter(s) related to the
School District for your new employer, the law firm of Dillon McCandless King Coulter &
Graham, which serves as Solicitor for the School District, subject to the condition that in
so doing, you would not engage in any activity(ies) that would involve representation
before the School District School Board which 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.
Specifically not addressed herein is the applicability of the Rules of Professional
Conduct.
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 fetter 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 actual)
received at the Commission within thirty (30) days of the dateofth s
vice pursuant to 51 Pa. Code § 112(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (7�7 -787 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
obin M. Hittie
Chief Counsel