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HomeMy WebLinkAbout18-569 Sanchez RidgePHONE: 717 - 783 -1610 TOLL FREE: 1 -800- 932 -0936 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