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HomeMy WebLinkAbout99-566 LloydWilliam R. Lloyd, Jr. PO Box 425 Somerset, PA 15501 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL July 1, 1999 FAX: (717) 787 -0806 ® Web Site: www.ethics.state.pa.us ® e -mail: ethics @state.pa.us 99 -566 Re: Former Public Official; Section 1103(g); State Representative; House of Representatives; Lobbying. Dear Mr. Lloyd: This responds to your letter of May 27, 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 ") would restrict certain lobbying and lobbying - related activities of a former State Representative during the first year after termination of service with the House of Representatives. Facts: On November 30, 1998, you retired after eighteen years as a Member of the Pennsylvania House of Representatives. You are currently engaged in the private practice of law. You state that one of your clients is a statewide organization for which you have been analyzing legislation. The client has asked you to determine to what extent you would be permitted to contact members and staff of the General Assembly on legislation of interest to the client. Due to the pending litigation as to the State Ethics Commission's authority over attorneys (Shaulis v. State Ethics Commission, No. 991 C.D. 1999 (regarding the issue of applying Section 1103(g) of the Ethics Act so as to include former public officials /public employees who are attorneys engaged in the practice of law); and Gmereck v. State Ethics Commission. et al., No. 323 M.D. 1999 (raising a constitutional challenge to the Lobbying Disclosure Act based upon alleged regulation of the practice of law)), you ask that this Advice be based upon the assumption that the State Ethics Commission's position in the litigation prevails. You pose the following six specific inquiries: 1) Whether you are permitted to "lobby" the state Senate at the present time; 2) Whether you are permitted to "lobby" the Executive Branch at the present time; Lloyd, 99 -566 July 1, 1999 Page 2 3) When you will be permitted to "lobby" the state House of Representatives; 4) When you will be permitted to "lobby" a joint House - Senate committee such as the Joint Legislative Conservation Committee, the Legislative Budget and Finance Committee, the Joint State Government Commission, the Local. Government Commission, or a, special or select committee formed by concurrent resolution; 5) Whether you are permitted at the present time to contact the chairman, minority chairman, or staff of a House committee or a joint committee to ask for a list of legislation which is scheduled for committee consideration or a public hearing, as long as you do not identify any specific piece of legislation in which you are interested and do not communicate a position in favor of or against any specific piece of legislation; and 6) Whether you are permitted at the present time to contact the chairman, minority chairman, or staff of a House committee or a joint committee to ask whether a specific piece of legislation is scheduled for consideration or a public hearing, as long as you do not communicate a position in favor of or against that legislation. Discussion: In the former capacity as a Member of the Pennsylvania House of Representatives, you would be considered a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Consequently, upon termination of public service, you became a "former public official" subject to Section 1 103(g) of the Ethics Act. 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 ": 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) (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 Act as follows: Section 1 102. 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 • Lloyd, 99 -566 July 1, 1999 Page 3 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 Pa.C.S. §1102 (Emphasis added). As noted in the factual recitation above, the issue of whether Section 1103(g) of the Ethics Act may be applied to former public officials /public employees who are attorneys insofar as the practice of law is concerned is currently the subject of litigation (Shaulis v. State Ethics Commission, No. 991 C.D. 1999), which, when finally decided, will set forth the limitations if any that Section 1103(g) imposes in that regard. The pending litigation challenging the constitutionality of . the Lobbying Disclosure Act, 65 P.C.S. Section 1301 et. sesa., based upon alleged intrusion upon the jurisdiction of the Supreme Court to regulate the practice of law, will likewise, when finally decided, clarify that issue. You have posed six very specific inquiries with regard to your proposed conduct, and consequently, this Advice shall be limited to addressing those specific inquiries. You have asked that this Advice answer those inquiries based upon the assumption that the State Ethics Commission's position will prevail in the aforesaid litigation. However, to the extent you may be seeking advice under the Lobbying Disclosure Act, such may not and is not given herein. The State Ethics Commission may not issue advisories under the Lobbying Disclosure Act at this time. Your specific inquiries shall now be addressed under the Ethics Act. In response to your first and second specific inquiries, which ask whether you would be permitted to lobby the state Senate or the Executive Branch at the present time you are advised as follows. 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. 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 /public 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 termination of public service is the House of Representatives in its entirety as well as any Boards, Commissions, Committees and the like upon which you served in an official capacity. Your former governmental body does not include the Senate or Executive Branch. Therefore, for the first year after termination of your service with the House of Lloyd, 99 -566 July 1, 1999 Page 4 Representatives, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the House of Representatives as well as any Boards, Commissions, Committees and the like upon which you served in an official capacity, but not the Senate or Executive Branch. In response to your third specific inquiry, you are advised as follows. In Tight of the statutory definition of "represent" which is set forth above and which specifically includes lobbying, the lobbying of your former governmental body would be a prohibited form of representation under Section 1103(g). Thus, you are advised that pursuant to Section 1103(g) of the Ethics Act, you would not be permitted to lobby the State House of Representatives during the one year period of applicability of Section 1 103(g). In response to your fourth specific inquiry as to when you will be permitted to lobby a Joint House - Senate Committee, you are advised that such would not be permissible during the one -year period of applicability of Section 1103(g) of the Ethics Act because such a committee would include your former governmental body, the House. In response to your fifth specific inquiry, you are advised that the proposed contact with a chairman, minority chairman, or staff member of a House Committee or Joint Committee to ask for a list of legislation that would be non - specific and that would not communicate a position in favor of or against a specific piece of legislation would be permissible as long as the restrictions of Section 1103(g) of the Ethics Act would be observed. The Ethics Act does 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 /client. In response to your sixth specific inquiry, where you propose to contact the chairman, minority chairman, or staff of a House Committee or a Joint Committee to ask whether a specific piece of legislation is scheduled for consideration or public hearing, but without communicating any position in favor of or against that legislation, you are advised as follows. The mere contact as to the scheduling of such a matter, without more, would not constitute "prohibited representation" under Section 1103(g) and therefore would be permitted by Section 1 103(g) of the Ethics Act subject to the same restrictions and conditions set forth above. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(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 1 103(a) of the Ethics Act. Further, you are advised that Sections 1 103(b) and 1 103(c) 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. Lastly, 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 Lloyd, 99 -566 July 1, 1999 Page 5 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Lobbying Disclosure Act, the Legislative Code of Conduct, or the Rules of Professional Conduct. Conclusion: In the former capacity as a State Representative of the Pennsylvania House of Representatives, you would be considered a "public official" subject to the Public Official and Employee Ethic Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Upon termination of service with the House of Representatives, you became a "former public official" subject to Section 1103(g) of the Ethics Act. The former governmental body is the House of Representatives in its entirety as well as any Boards, Commissions, Committees and the like upon which you served in an official capacity. The restrictions as to representation outlined above must be followed. 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, 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 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Vincent Dopko Chief Counsel