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HomeMy WebLinkAbout99-543 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL April 23, 1999 Re: Section 1103(g); Bureau A; Director of the B and C; Attorney. This responds to your letter dated February 24, 1999 by which you requested confidential advice for the State Ethics Commission. ISSUE: Whether Section 1103(g) of the Public Official and Employee Ethics Act presents any restrictions upon the employment of an attorney employed as the Director of the B and C following termination of service with the Commonwealth of Pennsylvania, Bureau A. FACTS: You are currently employed by the Commonwealth of Pennsylvania, Bureau A as the Director of the B and C. You are also an attorney in good standing, licensed to practice in Pennsylvania. You have submitted your job description, which document is incorporated herein by reference. You are considering taking advantage of the Commonwealth's 30 -year "retirement window" which expires on June 30, 1999. You ask for an advisory from the State Ethics Commission as to what restrictions would be placed on your employment following termination from Commonwealth service. You specifically ask if you may be employed as a lobbyist or by a legal publisher such as West Group or LEXIS. You state that while you are an employee of Bureau A, your daily work has nothing to do with drafting or analyzing legislation, and that your office has never had any contractual relationships with West Group or LEXIS. You state that you cannot consider employment with companies with whom Bureau A has contracts. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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. FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us 99 -543 Confidential Advice, 99 -543 April 23, 1999 Page 2 As the Director of the B and C with the Commonwealth of Pennsylvania, Bureau A, 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 § 1 1.1. Consequently, upon your retirement from the Commonwealth, you would become 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). Following the landmark case of Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 434 A.2d 1327 (Pa. Commw. Ct. 1981), aff'd Rer curiam, 498 Pa. 589, 450 A.2d 613 (Pa. 1982), the Commission consistently held that the predecessors of Section 1 103(g) (Section 3(e) of Act 170 of 1978 and Section 3(g) of Act 9 of 1989) could not be applied to restrict an attorney's conduct insofar as it constituted the practice of law, because the Supreme Court had the exclusive authority to regulate an attorney's conduct in that regard. See, e.g., Andrews, Opinion No. 90 -018. The Commission was of the understanding that any activity in which the attorney purported to render professional services to a client could only be regulated by the Supreme Court. Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 434 A.2d at 1331 -1332 (Note 7). However, Section 1 103(g)'s counterpart provisions were considered to restrict attorneys as to other, non -legal representation before their former governmental bodies, such as, for example, lobbying. The recent ruling by the Supreme Court of Pennsylvania in P.J.S. v. State Ethics Commission, No. 91 M.D. Appeal Docket 1997 (Pa. January 25, 1999), issued January 25, 1999 caused the Commission to revisit the question of whether Section 1 103(g) of the Ethics Act operates to preclude even legal representation by a former public official /public employee before his former governmental body. Although the appellant in P.J.S. was not a "former" public official /public employee, certain language in the Court's Opinion as to Section 1 103(a) of the Ethics Act could arguably apply to Section 1103(g) as well. Specifically, the Court stated: Contrary to appellant's assertion, the fact that the conduct proscribed by the conflict of interest provisions of the Ethics Act is similar to that proscribed by the Rules of Professional Conduct, does not mean that the Commission's investigation is barred. Appellant is not exempt from the jurisdiction of the Commission by virtue of his status as an attorney. Rather, appellant is subject to the jurisdiction of this court because of his status as an attorney. The jurisdiction of this court is exclusive in the sense that it applies equally to all members of the Bar of Pennsylvania. Confidential Advice, 99 -543 April 23, 1999 Page 3 65 Pa.C.S. §1102. The exclusive jurisdiction of this court is infringed when another branch of government attempts to regulate the conduct of attorneys merely because of their status as attorneys. However, the jurisdiction of this court is not infringed when a regulation aimed at conduct is applied to all persons, and some of those persons happen to be attorneys. To hold, as appellant suggests, that the mere status of "attorney" exempts one from meeting the necessary professional regulations which flow from whatever position one holds in addition to that of "attorney" is absurd. Clearly appellant's status as an attorney does not bar the Commission from investigating allegations that appellant engaged in conduct proscribed by the Ethics Act. The investigation of appellant by the Commission does not infringe upon this court's exclusive jurisdiction to regulate the ethical and professional conduct of attorneys admitted to the practice of law in this Commonwealth. P.J.S. v. State Ethics Commission, No. 91 M.D. Appeal Docket 1997, Slip Op. at 9 -10 (Pa. January 25, 1999). The Court in P.J.S. drew a very clear, logical, and sensible distinction between the regulation of attorneys specifically, which intrudes upon the Court's jurisdiction, versus the regulation of groups that happen to include attorneys. In reviewing the above analysis by the Supreme Court, the Commission determined in Shaulis, Opinion 99 -003, appeal pending in Shaulis v. State Ethics Commission, Commonwealth Court at 991 C.D. 199, that Section 1103(g) of the Ethics Act applies to prohibit representation by a former public official /public employee before the former governmental body, even if that former public official /public employee happens to be an attorney engaged in the practice of law. In Shaulis, supra, the Commission noted that Section 1 103(g) is not targeted at attorneys specifically, nor does it regulate them exclusively. To the contrary, Section 1103(g) of the Ethics Act imposes restrictions upon all former public officials /public employees, some of whom are attorneys but many of whom are not. Moreover, the prohibition against representation before the former governmental body during the first year is not exclusively targeted at legal representation. To the contrary, the key term "represent" is defined so as to include any form of representation: 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. Confidential Advice, 99 -543 April 23, 1999 Page 4 Therefore, upon your retirement from the B and C, Section 1103(g) of the Ethics Act would apply to restrict you insofar as your activity would constitute representation before your former governmental body, even if such representation would constitute the practice of law. Having so held, the restrictions of Section 1103(g) will be set forth and your specific inquiries as to whether you may be employed as a lobbyist or by a legal publisher such as West Group or LEXIS shall be addressed. 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." Id. The definition of the term "represent" has been set forth above. The terms "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: "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 Pa.C.S. §1102. The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "represent" 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 -01 1. 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 Confidential Advice, 99 -543 April 23, 1999 Page 5 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 Act 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 1 103(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 have been associated upon retirement from public service is Bureau A in its entirety. Therefore, for the first year after termination of service, Section 1103(g) of the Ethics Act would apply and restrict your "representation" of "persons" before Bureau A, including B and C. Having set forth the restrictions of Section 1103(g), your specific inquiry regarding whether you may be employed as a lobbyist or by a legal publisher such as West Group or LEXIS shall be addressed. As noted above, the Ethics Act does not bar such employment but restricts the representation of persons, including your new employer, before your former governmental body. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(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 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103© of the Ethics Act provide in part that no person shall offer to a public official /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 official /public 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. 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 Rules of Professional Conduct. CONCLUSION: In your capacity as the Director of B and C with the Commonwealth of Pennsylvania, Bureau A, you would be considered a public official /public employee subject to Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1103(g). Upon retirement from Bureau A, you would become a "former" public official /public employee. Based upon P.J.S. v. State Ethics Commission, No. 91 M.D. Appeal Docket 1997 (Pa. January 25, 1999) and Shaulis Opinion, supra, Section 1103(g) of the Ethics Act restricts your representation of persons before your former governmental body, as outlined above. The former Confidential Advice, 99 -543 April 23, 1999 Page 6 governmental body would be Bureau A. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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, provided 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 Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. S cerely, Od-rtt Vincent J. opko Chief Counsel