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HomeMy WebLinkAbout19-526 ConfidentialPHONE, 717-783-1610 TOLL FREE: 1 ­800­932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL 18jummul 11001 FACSIMILE: 717-787-0806 WERSITE:Wwwothic-�,pa.goy 19-526 This responds to your letter dated April 5, 2019, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 P—a-CS. § 1101 et seq., would impose restrictions upon employment of an A of Governmental BowMowingtermination of service with the Commonwealth. Facts: You request a confidential os - advisory from the Commission regarding the employment restrictions of the Ethics Act. You have submittedat may be fairly summarized as follows. You are an attorney admitted to the Bar of the Supreme Court of Pennsylvania. In [month, year], you terminated your service as an A of Governmental Body B. On [datej, you began serving as the C for [name of association] (the "Association"). The Association's members include approximately [number] [types of entities] operating in the Commonwealth. In your positionwiththe Association, you will be called upon to lobby the D, including the As and staff of Governmental Body B, for the purpose of shaping E and F affecting the Association's members. You will meet with As and staff of Governmental Body B in various settings i and discuss with them [certain matters]. Your work will include [performing certain activities]. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you durin,9 the first year following termination of your service with Governmental Body. In particular, you seek guidance as to whether you would be permitted to lobby the As and staff of overnmental Body B on behalf of the Association. Discussion: It is initially noted that pursuant to Sections 11 07(l 0) and 11 07(l 1) 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 truthfully disclosed all of the material facts. Confidential Advice, 19-526 May 31, 2019 Page 2 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 the State Ethics Commission. Consequently, upon termination of service with Governmental Body B, you became a "former public official" subject to Section 11 03(g) of the Ethics Act. While Section 1103(�) does not prohibit a former public official/public employee from accepting a position o employment, it does restrict the former public official/public employee with regard to "representing" a "person" before "the governmental body with which has been associated": § 1103. Restricted activities (g) Former official or employee. --No former public official or public employee shall re resent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated To—r one year atter he leaves that body. 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 "person," 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, lobbyin 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 been employed d or to which the public official or employee is or has beenappointed or elected and subdivisions and offices within that governmental body. Section 11 03(g) of the Ethics Act restricts a former public official1public employee 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-Ti'm—seff, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 5-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in any activity. Confidential Advice, 19-526 May 31, 201-9-- Page 3 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 reard. Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A,2d 123 �2003 �; pt, Yocum v. Pennsvlvania Gaminq Control Board, 639 Pa. 521, 161 A.3d 228 2017 Additionally, the Commonwealth Court of Pennsylvania has held that lobbyingg by a lawyer is the practice of law. Gmerek v. State Ethics Commission, 751 A.: 1241 (Pa. Cmwlth. 2600), affirmed lb -evenly divided Court, 569 Pa. 5 , 807 A.2d 812 (200 Therefore, you are advised that lobbying services that you (an attorney) would provide would be considered the practice of law. Id. The governmental body with which you are deemed to have been associated upon termination of your service with Governmental Body B is Governmental Body Bin its entirety. Therefore, for the first year following termination of your service with Governmental Body B, Section 1103(g) of the Ethics Act would aFply and restrict representation" of a "person" before Governmental Body B to he extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Confidential Opinion, 19-001. Given your status as an att(5-r—n, lion 1103(g) of the Ethics Act—w-64W-not prohibit you, in your role as the C for the Association, from lobbying the As and staff of Governmental Body B on behalf of the Association (cf. Shaulis, supra; Gmerek, supra; Confidential Opinion, 19-001). Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) 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 ublic position, for a private pecuniary benefit as prohibited by Section 1103�a) of the Ethics Act. Further, you are that Sections 1 03(b) and 11 03(c) of the thics Act provide in part that no person shall offer or give to a pub is off icial/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 off icja!lpub lic 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. Conclusion: In the former capacity as an A of Governmental Body B, ou would be consia d a "ppublic official" subject to the Public Official and Employee Kthics Act EEthics Act"), 65 a.C.S, § 1101 et seg., and the Regulations of the State Ethics mmission, 51 Pa. Code § 117f et seq. Upon termination of service with Governmental 131 B, you became a "farmer official" subject to Section 1103 I of the Ethics Act. he former governmental body is Governmental Body B in its entire For the first year following termination of your service with Governmental Body Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "nerson 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 the 6 for [name of association] (the "AsSOGiation"), from lobbing the As and staff of Governmental Body B on behalf of the Association. The restrictions as to representation outlined above must be followed. Confidential Advice, 19-526 May 2019 P 4� 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 writingg and must be actuall received at the Commission within thirty (31 days of the date o thin Advice pursuant to 5'1 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 (717'787-08'06 . Failure to Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hutt/tied I Chief Counsel