HomeMy WebLinkAbout18-569 Sanchez RidgePHONE: 717 - 783 -1610
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To the Requester:
ADVICE OF COUNSEL
December 4, 2018
Ms. Lourdes Sanchez Ridge, Esquire
Pietragallo Gordon Alfano Bosick & Raspanti, LLP
Dear Ms. Sanchez Ridge:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
18-569
This responds to your letter dated September 27, 2018, received October 3,
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
P .TS. § 1101 et se-q., would impose restrictions upon employment of the City Solicitor
for the City of Pittsburgh ( "City "), Pennsylvania, following termination of service with the
City.
Facts: You request an advisory from the Commission based upon submitted
accts hat may be fairly summarized as follows.
You are an attorney admitted to the Bar of the Supreme Court of Pennsylvania.
From January 6, 2014, through April 7, 2018, you served as the City Solicitor. As
of April 23, 2018, you joined the law firm of Pietragallo Gordon Alfano Boslck &
Raspanti, LLP (the "'Law Firm "). In your role with the Law Firm, you may be asked to
represent persons or entities in matters before the City. In particular, one of your clients
would like you to represent her in requesting the City for a reasonable accommodation
to a City ordinance due to a disability.
You seek guidance as to whether Section 1103 (g) of the Ethics Act would
impose prohibitions or restrictions upon you with regard to representing a Law Firm
client before the City in legal matters that you were not engaged in while you were
serving as the City Solicitor.
It is administratively noted that the City Solicitor is the head of the City
Department of Law. See, Article III, Chapter 125, Section 125.01 of the Pittsburgh
Code.
Discussion: It is initial noted that pursuant to Sections 1107(10) and 1107('11) of
e Ics ct, 65 Pa.C.S. § 1107(10), (11), advisories are issued to the requester
S6nchez Ridge, 18 -569
Uecem er 18
Page 2
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. §§ 1107000 , (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 the City Solicitor, you would be considered a public
official/public employee subject to the Ethics Act and the Regulations of the State Ethics
Commission.
Consequently, upon termination of your service as the City Solicitor, you became
a former public official/public employee subject to Section 1103(g) of the Ethics Act.
While Section 1103(8) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public officiallpublic
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
one year after he leaves that body.
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
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
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
S6nchez Ride 18569
ecem er 18
Page 3
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 "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 public employee Hi—mseff,
Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur,
Opinion 95-007. 1he term "represent" is also broadly defined to prohibit acting on
behalf of any person in pny activity.
However, Section 1103(g) of
attorney's conduct insofar as it
Pennsylvania Supreme Court has
conduct in that regard. Shaulis v. PE
833 A.2d 123 (2003), overruled in
Board, 639 Pa. 521, 161 A.3d 228 2
the Ethics Act may not be applie d
constitutes the practice of law,
the exclusive authority to regulate
ocum v. Nennsvivania
to restrict an
because the
an attorney's
1, 574 Pa. 680,
amino Control
The governmental body with which you are deemed to have been associated
upon termination of your service as the City Solicitor is the City Department of Law.
Therefore, for the first year following termination of your service as the City Solicitor,
Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person"
before the City Department of Law to the extent such representation would not
constitute the practice of law. Cf., Moore, Opinion 05 -008; Clark, Advice 18 -537;
Pritzker, Advice 17 -551; Confide ntiaTA vc ice,�17 -523; ConfidentialFA -& ce, 17 -509.
You are advised that durin the first year following termination of your service as
the City Solicitor, Section 1103 g) of the Ethics Act would not prohibit you from
representing a Law Firm client efore the City in legal matters that you were not
engaged in while you were serving as the City Solicitor subject to the condition that in
so doing, you would not engage in any activity(ies) that would involve representation
before the City Department of Law 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 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 give 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
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
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 the City Solicitor for the City of Pittsburgh
("City"), ennsylvania, you would be considered a public official/public em toyee subject
to the Public Official and Employee Ethics Act ( "Ethics Act ") 65 Pa.C.S. 1101 et she
and the Regulations of the State Ethics Commission, 51 Pa. Code § 11. et sel -Upon
termination of your service as the City Solicitor, you became a former public
Sanchez Ridge, 18 -569
D—e-c-e—m-Fe—r-4, 2018
Page 4
official /public employee subject to Section 1103(g) of the Ethics Act. The former
governmental body is the City Department of LLaw. For the first year following
termination of your service as the City Solicitor, Section 1103 {g) of the Ethics Act would
apply and restrict "representation" of a "person" before the City Department of Law to
the extent such representation would not constitute the practice of law. Section 1103(g)
of the Ethics Act would not prohibit you from representing a client of your new employer,
the law firm of Pietragallo Gordon Alfano Bosick & Raspanti, LLP, before the City in
legal matters that you were not engaged in while you were serving as the City Solicitor
subject to the condition that in so doing, you would not engage in any activity(ies) that
would involve representation before the City Department of Law 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 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 actually
received at the Commission within thirty (30) days of the date o►s
Advice pursuant to 59 Pa. Code § 93.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission. (797 - 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
Robin M. Hittie
Chief Counsel