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HomeMy WebLinkAbout97-634 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 15, 1997 97 -634 Re: Former Public Official /Public Employee; Section 3(g); Department A; Administrative Law Judge; B; Attorney; Legal Representation. This responds to your letter of November 9, 1997, by which you requested confidential advice from the State Ethics Commission. Issue: Whether and to what extent Section 3(g) of the Public Official and Employe Ethics Law imposes restrictions upon an attorney following termination of employment as an Administrative Law Judge, specifically a B with Department A. Facts: You are currently employed by Department A as an Administrative Law Judge, specifically, a B. You are also an attorney licensed to practice law in Pennsylvania. You state that a current Department A and Act C Code of Conduct precludes the practice of law while serving as a B. You request an advisory as to any restrictions which would be placed upon you should you resign from employment as a B and practice law as a licensed attorney representing clients before B's, Board D, and the appellate courts of Pennsylvania. You specifically ask what prohibitions exist under the Ethics Law in light of Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1237 (Pa. Commw. Ct. 1981), aff'd. gj curiam, 450 A.2d 613 (Pa. 1982). Discussion: As an Administrative Law Judge, specifically a B for Department A, you would be considered a public official /public employee subject to the Public Official and Employe Ethics Law ( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. §402; 51 Pa.Code §11.1; Lloyd, Opinion No. 80- 040. Consequently, upon termination of service with Department A, you would become a "former" public official /public employee. Typically, former public officials /public employee's 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). Confidential Advice of Counsel, 97 -634 December 15, 1997 Page 2 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. kL, 434 A.2d at 1331 -1332 (Note 7). Therefore, upon termination of service as a B with Department A, 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. On the other hand, Section 3(g) would apply to restrict you as to other, non- legal representation before your former governmental body. 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: 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 governm"bnt 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. Confidential Advice of Counsel, 97 -634 December 15, 1997 Page 3 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, 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. Confidential Advice of Counsel, 97 -634 December 15, 1997 Page 4 The governmental body with which you will have been associated upon termination of public service is Department A in its entirety. Therefore, for the first year after termination of service with Department A, Section 3(g) of the Ethics Law would apply and restrict your "representation" of "persons" before Department A to the extent such representation would not constitute 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of Act C, the Governor's Code of Conduct, the Rules of Professional Conduct, or any other code of conduct such as may exist within your Department. Conclusion: As an Administrative Law Judge, specifically a B, you would be considered a public official /public employee subject to the Ethics Law. Upon termination of service with Department A, 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 Department A 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(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 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. Confidential Advice of Counsel, 97 -634 December 15, 1997 Page 5 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. 'ncerely, incent Dop o Chief Counsel