HomeMy WebLinkAbout99-511 ShaulisKathleen Krise Shaulis
1633 Walnut Bottom Rd.
Carlisle, PA 17013
Dear Ms. Shaulis:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
February 19, 1999
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.Da.us • e - mail: sec@state.pa.us
99 -51 1
Re: Former Public Official /Public Employee; Section 1103(g); Senior Assistant
Counsel, Attorney 111; Attorney; Department of Revenue; Publications Regarding
PA Taxes.
This Advice is issued in response to your letters of January 11 and January 30,
1999, by which you requested advice from the State Ethics Commission.
Issue: Whether Section 1103(g) of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. §1103(g) would prohibit a former Senior Assistant Counsel,
classified as an Attorney 111, from writing and publishing articles /books on the subject
of Pennsylvania State taxes, following retirement from the Commonwealth of
Pennsylvania, Department of Revenue.
Facts: On January 22, 1999, you retired from Commonwealth employment as
a Senior Assistant Counsel, Attorney 111, for the Office of Chief Counsel in the
Department of Revenue ( "Department "). You had been with the Department's Office
of Chief Counsel for more than sixteen years. For ten of the last twelve years, you
were the supervisor for the Pennsylvania realty transfer tax and public utility tax.
Earlier in your career, you were trained in sales and use tax, inheritance tax, and motor
fuel taxes. You have served as the legal advisor to the Department's Voluntary
Disclosure Committee. In your most recent position, you advised the Department as
to miscellaneous corporate taxes including the title insurance company tax shares
applicable to domestic companies, the gross premiums tax applicable to all other
insurance companies, and the retaliatory charge on insurance companies. You state
that, because of your diverse background you were also assigned to interpret and draft
regulations for the implementation of Pennsylvania's first amnesty program.
Now that you have retired from Commonwealth employment, you no longer
have any connection with state government. You ask for an advisory from the State
Ethics Commission on the narrow question of whether Section 1 103(g) of the Ethics
Act would prohibit you from writing and publishing articles /books on the subject of
Pennsylvania state taxes. Per a telephone conversation between you and the Assistant
Counsel for the Legal Division of the Commission, it is clear that factually, these
particular plans do not include the Department of Revenue.
You state your understanding that the Ethics Act may not be applied to restrict
an attorney's conduct insofar as it constitutes the practice of law. You further state
Shaulis, 99 -511
February 19, 1999
Page 2
that you are familiar with the confidentiality provision of the Fiscal Code, 72 P.S.
§731, which restricts disclosure of confidential taxpayer information.
It is noted that after your request for an advisory was received, the Pennsylvania
Supreme Court issued its decision in P.J.S. v. State Ethics Commission, No. 91 M.D.
Appeal Docket 1997 (Pa. January 25, 1999). In a letter dated January 30, 1999, you
indicated your view that P.J.S. has no impact upon your request.
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 requestor
based upon the facts which the requestor has submitted. In issuing the advisory based
upon the facts which the requestor has submitted, the Commission does not engage
in an independent investigation of the facts, nor does it speculate as to facts which
have not been submitted. It is the burden of the requestor to truthfully disclose all of
the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (1 1). An advisory
only affords a defense to the extent the requestor has truthfully disclosed all of the
material facts.
As a Senior Assistant Counsel, Attorney 111 for the Office of Chief Counsel in the
Department of Revenue ( "Department "), you would be considered a public
official /public employee subject to the Public Official and Employee Ethics Act ( "Ethics
Act ") and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102;
51 Pa. Code §11.1. Consequently, upon your retirement from the Commonwealth, you
became a "former" public official /public employee.
Former public officials /public employees are subject to Section 1103(g) of the
Ethics Act which provides as follows:
Section 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 body.
65 Pa.C.S. §1103(g).
Section 1103(g) restricts the former public official /public employee with regard
to "representing" a "person" before "the governmental body with which he has been
associated." ,IBC.. The terms "represent," "person" and "governmental body with which
a public official or public employee is or has been associated" are defined in the Ethics
Act as follows:
Section 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.
Shaulis, 99 -511
February 19, 1999
Page 3
65 Pa.C.S. §1102.
"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.
Section 1103(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.
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 have been associated upon retirement from public service is the
Department of Revenue in its entirety.
In applying Section 1103(g) to the narrow question which you have posed,
specifically whether Section 1103(g) would prohibit you from writing and publishing
articles /books on the subject of Pennsylvania State taxes, you are advised that since
factually, such activities would not involve representation before your former
governmental body, the Department of Revenue, they would not be prohibited by
Section 1 103(g) of the Ethics Act.
In light of your comment regarding the practice of law, it is noted that the
Pennsylvania Supreme Court's decision in P.J.S. v. State Ethics Commission, No. 91
M.D. Appeal Docket 1997 (Pa. January 25, 1999) may have a broadening effect
insofar as the application of the Ethics Act to attorneys is concerned. While not
material in this particular advisory, the P.J.S. decision may be a factor in considering
other activities.
This Advice has addressed the applicability of Section 1 103(g) to the narrow
question posed. 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. Specifically not addressed herein is
the applicability of the Governor's Code of Conduct, the Rules of Professional Conduct
or the Fiscal Code.
Shaulis, 99 -511
February 19, 1999
Page 4
Conclusion: In your former capacity as a Senior Assistant Counsel /Attorney III with
the Commonwealth of Pennsylvania Department of Revenue, you would be considered
a public official /public employee subject to the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. §1101 e# seq. Upon retirement from the Commonwealth,
you became a "former" public official /public employee subject to Section 1 103(g) of
the Ethics Act, 65 Pa.C.S. §1103(g). Your former governmental body would be the
Department of Revenue. Based upon the submitted facts, and in response to the
narrow question posed, Section 1103(g) of the Ethics Act would not prohibit you from
writing and publishing articles /books on the subject of Pennsylvania taxes where
factually, such activities would not involve representation before your former
governmental body, the Department of Revenue. The propriety of the proposed
conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act 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 1107(11), 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, 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 §13.2M). 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.
Vincent J. Dopko
Chief Counsel