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Home My WebLink About19-001 ConfidentialPHONE: 717- 783 -1610 STATE ETHICS COMMISSION FACSIMILE: 717- 787 -0806 TOLL FREE: 1- 800 - 932 -0936 FINANCE BUILDING WEBSITE: www.ethics.m000y 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Monique Myatt Galloway Michael A. Schwartz Shelley Y. Simms DATE DECIDED: 216119 DATE MAILED: 2/22119 To the Requester: 19 -001 This Opinion is issued in response to your letter dated January 7, 2019, by which you requested a confidential advisory from this Commission. L ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1101 et se g., would impose restrictions upon employment of an A of Governmental Body following termination of service with Governmental Body B. II. FACTUAL BASIS FOR DETERMINATION: You request a confidential advisory from this Commission regarding the post - termination restrictions of the Ethics Act. You have submitted facts which may be fairly summarized as follows. You are an attorney licensed to practice law in the Commonwealth of Pennsylvania. Prior to [date], you served as an A of Governmental Body B. You are currently C of the D. Your duties as C of the D include, but are not limited to, lobbying on behalf of the D's public policy goals. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your service with Governmental Body B. In particular, you seek guidance as to whether you would be permitted to lobby Governmental Body B on behalf of the D. You specifically ask for clarification as to whether this Commission adheres to the precedents established by the cases of Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003)?, an-d--Gmerek v. State Ethics Commission, 75 .2 1241 (Pa. Cmwlth. 2000), affirmed by evert y M e______ourt, 569 Pa. 579,807 A.2d 812 (2002). Confidential Opinion, 19 -001 February 22, 2019 Page 2 By letter dated January 9, 2019, you were notified of the date, time and location of the executive meeting at which your request would be considered. 111. 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, this 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 discCosed all of the material facts. In the former capacity as an A of Governmental Body B, you would be considered a public official subject to the Ethics Act and the Regulations of this Commission. Consequently, upon termination of service with Governmental Body B, you became a "former public official subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public officiallpublic employee from accepting a pposition 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 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 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 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 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 Confidential O inion, 19 -001 February 22, 2019 Page 3 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 officiallpublic empplo ee 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 public employee — Himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95-UO7. The term represent" is also broadly defined to prohibit acting on beh If of any person in 2ny activity. 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. Shaulls, Supra. Additionally, the Commonwealth Court of Pennsylvania has held that lobbyingg by a lawyer is the practice of law. Gmerek, supra. Therefore, you are advised that lobbying services that you (an attorney) wou@ providewould be considered the practice of law. [d. The governmental body with which you are deemed to have been associated upon termination of your service with Governmental Body B is Governmental Body B in its entirety. Therefore, for the first year following termination of your service with Governmental Body B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before Governmental Body B to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05 -008. Given your status as an attorney, Section 1103(g) of the Ethics_)Vct w-d not prohibit you, in your role as C of the D, from lobbying Governmental Body B on behalf of the D (cf , Shaulis, supra; Gmerek, supra). Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: In the former capacity as an A of Governmental Body B, you would be considered a public official subject to the Public Official and Employee Ethics Act ( "Ethics Act' , 65 Pa.C.S. 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. ode 11.1 et se q. Upon termination of service with Governmental Body B, you became a former public ofFictal subject to Section 1103(g) of the Ethics Act. The former governmental body is Governmental Body B in its entirety. For the first year following termination of your service with Governmental Body B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before Governmental Body B to the extent such representation would not constitute the practice of law. Given your status as an attorney, Section 1103(g) of the Ethics Act would not prohibit you, in your role as C of the D, from lobbying Governmental Body B on behalf of the D. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting Confidential 19 -001 February 2001199 Page 4 provided the material facts are as stated in the request. This letter is a public record and will be made available as such. "t�eComrnissio Nicholas A. Colafella Chair