HomeMy WebLinkAbout97-599 SemesSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 24, 1997
Michael J. Semes, Esquire
461 Doe Run Lane
Springfield, PA 19064 97 -599
Re: Former Public Official /Public Employee; Section 3(g); Department of Revenue,
Chief Counsel; Attorney; Representation; Tax Practitioner; Former Governmental
Body.
Dear Mr. Semes:
This responds to your letter of June 26, 1997, by which you requested advice
from the State Ethics Commission.
Issue: Whether and to what extent Section 3(g) of the Ethics Law imposes
restrictions upon an attorney following termination of employment as Chief Counsel
with the Department of Revenue.
Facts: Until recently you served as Chief Counsel for the Department of
Revenue. You are, and will continue to be, licensed to practice law in Pennsylvania
and Delaware. You have accepted employment with Coopers & Lybrand, L.L.P. (C &L),
a professional services firm, and request an advisory from this Commission as to any
restrictions placed upon you after leaving government service. Specifically, you ask
the following questions:
1. Whether you may represent a C &L client before the Board of Finance and
Revenue.
2. Whether you may represent a C &L client before the Board of Appeals.
3. Whether you may participate in negotiations on behalf of a C &L client with
respect to a case that is docketed at Commonwealth [Court] and the
Department of Revenue is represented by the Office of Attorney General.
4. Whether you may participate in a task force comprised of, among others,
representatives from the tax bar where the task force's purpose is to assist the
Department of Revenue in drafting proposed regulations or legislation?
Semes, 97 -599
July 24, 1997
Page 2
5. Whether you may, as any other tax practitioner might, ask a representative of
the Department of Revenue or the Office of Chief Counsel for the Department's
interpretation of a matter.
Discussion: In the former capacity as Chief Counsel for the Department of
Revenue, you would be considered a public official /public employee subject to the
Public Official and Employee Ethics Law ( "Ethics Law ") and the Regulations of the
State Ethics Commission. See, 65 P.S. §402; 51 Pa.Code §11.1. Consequently,
upon termination of service with the Department of Revenue, you became a "former"
public official /public employee.
Typically, former public officials /public employees are subject to Section 3(g) of
the Public Official and Employee Ethics Law which restricts the former public
official /public employee with regard to "representing" a "person" before "the
governmental body with which he has been associated." 65 P.S. §403(g).
•
However, Section 3(g) of the Ethics Law may not be applied to restrict an
attorney's conduct insofar as it constitutes the practice of law, because the Supreme
Court has the exclusive authority to regulate an attorney's conduct in that regard.
See, Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327 (Pa.
Commw. Ct. 1981), aff'd per curiam, 498 Pa. 589, 450 A.2d 613 (1982) (dealing
with Section 3(g)'s predecessor, Section 3(e) of Act 170 of 1978). Any activity.in
which the attorney purports to render professional services to a client may only be
regulated by the Supreme Court. Iii 434 A.2d at 1331 -1332 (Note 7). Therefore,
upon termination of service with the Department of Revenue, Section 3(g) of the
Ethics Law could not be applied to restrict you insofar as your activity would
constitute the practice of law. Andrews, Opinion No. 90 -018.
As to the five questions posed, Section 3(g) of the Ethics Law would not restrict
the activities provided you perform such activities as an attorney in the practice of law
representing C &L or its clients.
However, Section 3(g) would apply to restrict you as to other, non -legal
representation before your former governmental body. Examples of non -legal
representation would be representing C &L or its clients as an accountant, non - lawyer
tax practitioner or lobbyist.
Section 3(g) of the Ethics Law provides as follows:
Section 3. Restricted activities.
(g) 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 body.
65 P.S. §403(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 Law as follows:
Semes, 97 -599
July 24, 1997
Page 3
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.
"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 or to which the public official or
employee is or has been appointed or elected and
subdivisions and offices within that governmental body.
65 P.S. §402.
The term "Person" is very broadly defined. It includes the former public
employee himself, Confidential Opinion 93 -005, as well as a new governmental
employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by 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; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section 3(g)
also generally prohibits the inclusion of the name of a former public official /public
employee on invoices submitted by his new employer to the former governmental
body, even though the invoices pertain to a contract that existed prior to termination
of public service, Shay, Opinion 91 -012. However, if such a pre- existing contract
does not involve the unit where the former public employee worked, the name of the
former public employee may appear on routine invoices if required by the regulations
of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95-
011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public
official /public employee may not be identified on documents submitted to the former
governmental body. The public official /public employee may also counsel any person
regarding that person's appearance before his former governmental body. Once again,
Semes, 97 -599
July 24, 1997
Page 4
however, the activity in this respect should not be revealed to the former governmental
body. The Ethics Law would not prohibit or preclude making general informational
inquiries to the former governmental body to secure information which is available to
the general public, but 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.
Section 3(g) only restricts the former public official /public employee with regard
to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public
employee is or has been associated" is not limited to the particular subdivision of the
agency or other governmental body where the public official /employee had influence
or control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you were associated upon termination of
public service would be the Department of Revenue in its entirety. Therefore, for the
first year after termination of service with the Department of Revenue, Section 3(g)
of the Ethics Law would apply and restrict your "representation" of "persons" before
the Department of Revenue to the extent such representation would not constitute the
practice of law.
Assuming that your representation of C &L or its clients would not be as an
attorney in the practice of law, you could represent clients before the Board of Finance
and Revenue which is not your former governmental body but could not do so as to
the Board of Appeals which is part of the Department of Revenue. Similarly, you could
not participate in negotiations of tax appeals docketed in Commonwealth Court as to
negotiations in which the Department of Revenue was participating. Further, you, as
an employee of C &L, could not participate in a task force to assist the Department of
Revenue as to drafting proposed regulations or legislation which would be an activity
seeking to create, modify, amend or repel regulations /legislation before your former
governmental body. Lastly, you would not be precluded from asking personnel in the
Department for an interpretation in that such activity is done by the general public.
Please note, once again, that the above responses are based upon the presumption
that you would not engage in such activities as an attorney in the practice of law.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 3(g) only. It is expressly assumed that there has been no use
of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of
the Ethics Law. Further, you are advised that 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 anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /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 Law; 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
Semes, 97 -599
July 24, 1997
Page 5
involve an interpretation of the Ethics Law. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct or the Rules of Professional Conduct.
Conclusion: In the former capacity as Chief Counsel for the Department of
Revenue, you would be considered a public official /public employee subject to the
Ethics Law. Upon termination of service with the Department of Revenue, Section
3(g) of the Ethics Law would not apply to restrict you insofar as your conduct would
constitute the practice of law. However, as to conduct which would not constitute
the practice of law, Section 3(g) would apply to restrict you, and those restrictions as
outlined above would have to be followed. The former governmental body would be
the Department of Revenue in its entirety. The propriety of the proposed conduct has
only been addressed under the Ethics Law.
Further, should service be terminated, as outlined above, the Ethics Law would
require that a Statement of Financial Interests be filed by no later than May 1 of the
year after termination of service.
Pursuant to Section 7(1 1), this 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, 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 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 writing and must be actually received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or
by FAX transmission (717- 787 - 0806). Failure to file such an appeal at
the Commission within thirty (30) days may result in the dismissal of
the appeal.
erely,
■■014
Vincent J.41 opko
Chief Counsel