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HomeMy WebLinkAbout91-588 BaronSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 1, 1991 Mr. Bruce G. Baron, Esquire 91 -588 Charles 0. Barto, Jr. and Associates 608 North Third Street Harrisburg, PA 17101 Re: Attorney, Department of Public Welfare, Representation, Section 3(g), Consultant. Dear Attorney Baron: This responds to your letter of September 11, 1991, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law upon termination of your employment with the Department of Public Welfare, where your private employment would involve work both as an attorney and as a consultant. Facts: Having previously been employed as an attorney for the Department of Public Welfare ( "DPW "), you seek the advice of the State Ethics Commission regarding your prospective conduct in your employment in the private sector both as an attorney and as a consultant. You state that you left employment with DPW as of 5:00 p.m. on October 19, 1990, after filing a letter of resignation by and effective on that date. You state that you did not work for or receive any compensation from DPW for any period after October 19, 1990. You did work for and receive compensation from a non - Commonwealth employer commencing in November, 1990, with the knowledge of DPW. DPW did not formally accept your resignation until January, 1991, as of January, 1991. Your retirement benefits have been computed from the January, 1991 date upon which your resignation was "accepted." You are not currently a public employee, and your current employment involves work both as an attorney and as a consultant. You have received requests to represent clients as a consultant and /or as an attorney before DPW. You acknowledge your understanding of existing case law which supports the position that the Ethics Law does not apply to Mr. Bruce G. Baron, Esquire October 1, 1991 Page 2 representation of clients as an attorney, such representation being subject only to the rules established by the Supreme Court of Pennsylvania. Nevertheless, you state that it would appear that the Ethics Law is intended to and does apply to situations in which you would be asked to represent clients as a consultant and not as an attorney, including situations in which you might provide expert research or opinions to an attorney. You specifically inquire whether the one -year time limit for application of Section 3(g) of the Ethics Law, as it would apply to your possible representation of clients before DPW as a consultant and not as an attorney, would commence to run on October 19, 1990 - the date you "left" DPW - or only as of the effective date in January, 1991, when the Department "accepted" your resignation. Discussion: Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Cmwlth. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982) dealt with the applicability of Section 3(e) of the Ethics Act of 1978 to attorneys in the regulation of their practice of law. However, you seek clarification on the applicability of the current Public Official and Employee Ethics Law to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law and new work and /or employment. In Pennsylvania Public Utility Commission Bar Association, supra, the Court held that Section 3(e) of the Ethics Act of 1978 was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct; the State Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3(g) of the current Ethics Law upon your conduct insofar as that conduct constitutes the practice of law. Spataro, Opinion 89 -009. Therefore, insofar as your conduct before the agency or entity with which you were associated, would constitute the practice of law, Section 3(g) of the Ethics Law cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 -1332. In this note, the Court indicated that any activity in which the attorney purports to render professional services to a client may only be regulated by the Supreme Court. We must conclude that to the extent that you would represent a client, as a lawyer, before the governmental body with which you were associated, Section 3(g) of the Ethics Law would not operate to bar such activity. Thomas, Opinion 90- 018. Mr. Bruce G. Baron, Esquire October 1, 1991 Page 3 If, however, the activities that you intend to undertake before DPW - all of DPW being deemed to be the governmental body with which you have been associated while employed by DPW - do not fall within the category of the "practice of law ", the prohibitions of Section 3(g) of the Ethics Law might be applicable. Lobbying is an activity which might be considered by the Commission not to constitute the "practice of law" or to be undertaken in the capacity as lawyer- client. In any event, even if Section 3(g) of the Ethics Law were to be applicable, said Section would not regulate your conduct except with respect to DPW as your former "governmental body." Therefore, any representation which you might undertake with respect to a client or employer before any entity other than DPW would not be restricted by Section 3(g) of the Ethics Law in any event. With respect to those of your activities which would not constitute the "practice of law," the restrictions of Section 3(g) are set forth below for your information. There is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. 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. In addition, the term "Person" is defined as follows under Mr. Bruce G. Baron, Esquire October 1, 1991 Page 4 the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, •association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above to the extent your activities are outside the scope of the practice of law. Even where Section 3(g) would restrict your activities outside the practice of law, you may assist in the preparation of any documents presented to DPW so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DPW. Once again, however, the activity in this respect should not be revealed to DPW. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DPW Mr. Bruce G. Baron, Esquire October 1, 1991 Page 5 to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Turning to your specific inquiry regarding the point at which the one -year period for applicability of Section 3(g) would commence to run in your case, for activities outside the scope of the practice of law, the one -year period would commence immediately following the termination of your service with DPW on October 19, 1990. This conclusion is based upon your representations that you filed a letter of resignation with the Department by that date which was effective that date. The manner in which DPW has chosen to view your resignation would not have applicability to the questions you have posed to this Commission under the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the propriety of any other statute, code, regulation or ordinance other than the Ethics Law has not been considered. Specifically not addressed in this Advice is the applicability of the Governor's Code of Conduct and /or the Rules of Professional Conduct. Conclusion: Section 3(g) of the Ethics Law does not restrict your representation or your activities, as outlined above, insofar as those activities constitute the practice of law. To the extent your activities are outside of the scope of the practice of law, the restrictions as to representation outlined above must be followed. The one -year period for the applicability of Section 3(g) of the Ethics Law would commence to run in your case immediately following the termination of your service with DPW on October 19, 1990. The propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil Mr. Bruce G. Baron, Esquire October 1, 1991 Page 6 or criminal proceeding, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. VJD /dmb Sincerely, Vincent Dopko, Chief Counsel