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HomeMy WebLinkAbout18-547 MihalikPHONE: 747 -783 -1690 TOLL FREE: 1- 800 -932 -0936 ,z STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL July 27, 2018 To the Requester: Mr, John A. Mihalik, Esquire Hummel, Lewis & Smith, LLP Dear Mr. Mihalik: FACS I M [ L E: 717- 787 -0806 WEBSITE: www.ethias.pa.gav 18 -547 This responds to your letter dated July 10, 2018, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether Section 1103(g) of the Public Official and Employee Ethics Act t Ics Act "), 65 Pa.C.S. § 1103(g), would impose prohibitions or restrictions upon a law firm that resigned from serving as the Solicitor for the Town of Bloomsburg ( "Town ") with regard to representing clients before the Town. Facts: You request an advisory from the Commission based upon the following submitted facts. You are an attorney with the law firm of Hummel, Lewis & Smith, LLP (the "Law Firm" ). The Law Firm resigned from serving as the Solicitor for the Town effective June 11, 2 18. You seek guidance as to whether Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon the Law Firm with regard to representing clients before the Town during the first year following termination of the Law Firm's service as the Town Solicitor. 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 tri fully disc osed all of the material facts. In responding to your inquiry, the threshold question to be addressed is whether, in the former capacity as the Town Solicitor, the Law Firm would be considered a "public official" subject to the Ethics Act. (It is parenthetically noted that in the aforesaid former capacity, the Law Firm would not be considered a "public employee" subject to the Ethics Act because the Law Firm is not an individual. See, 65 Pa.C.S. § 1102, definition of "public employee "; Myers, Opinion 96 -004). Malik, 18 -547 u7, 2018 Page 2 In 1997 and 1999, the status of Solicitors under the Ethics Act was clarified by certain rulings of the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania. In P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997), the Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest provisions of the Ethics Act do apply to solicitors who are public employees and are not just retained by their client municipalities. The Supreme Court of Pennsylvania subsequently affirmed the Commonwealth Court's decision in the P.J.S. case. P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). However, in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), allot. den., 550 Pa. 686, 704 A.2d 640 (1997), based upon an analysis of prior precedents, the Commonwealth Court of Pennsylvania determined that a municipal Solicitor who is retained by - -as opposed to being an employee of- -the municipality is not a "public official or public employee" as those terms are defined in the Ethics Act and therefore is not subject to the conflict of interest provisions of the Ethics Act. In the instant matter, based upon the submitted facts, you are advised that in the former capacity as the Town Solicitor, the Law Firm would not be considered a "public official" subject to the Ethics Act. Section 1103(g) of the Ethics Act provides as follows: § 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 body with which he has been associated for one year after he leaves that body. 65 Pa. C.S. § 1103(g). Because the post - termination restrictions of Section 1103(8g) of the Ethics Act only apply to former public officials and public employees, Section 1103(g) of the Ethics Act would not apply to restrict the Law Firm - -or individual attorneys in the Law Firm- - now. It is parenthetically noted that Section 1103(b) of the Ethics Act applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public officiallpublic employee anything of monetary value 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 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 thereof but merely to provide a complete response to the question presented. Additionally, all Solicitors are required to file Statements of Financial Interests r rsuant to the Ethics Act. 65 Pa.C.S. § 1104(a); Foster, Opinion 98002; see also, J.S., supra (intent of amendment to Section 404, now ection 1104, of the Ethics Act was to include solicitors who are not employees of the governmental units they serve within the scope of the Ethics Act's financial disclosure provisions). 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 Malik, 18 -547 July27, 2018 Page 3 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: Based upon the submitted facts that: (1) you are an attorney with the aw irm of Hummel, Lewis & Smith, LLP (the "Law Firm }; and (2) the Law Firm resigned from serving as the Solicitor for the Town of Bloomsburg ('Town") effective June 11, 2018, you are advised as follows. Per rulings of the Pennsylvania appellate courts, in the former capacity as the Town Solicitor, the Law Firm would not be considered a "public official" subJiect to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sec.. Consequently, Section 1103(8) of the Ethics Act would not appply to restrict tFe Law Firm - -or individual attorneys in the Law Firm - -now. Section 1103(b) of the Ethics Act applies to everyone, and all Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. 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 writing and must be act�ual)y received at the Commission within thirty (30) days of the date of this Advice pursuant to 57 Pa. Code § �3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (777- 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 ' o Chief Counsel