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HomeMy WebLinkAbout00-586 KociolekPeter W. Kociolek, Jr., Esquire Charles O. Barto, Jr. and Associates 608 North Third Street Harrisburg, PA 17101 Dear Mr. Kociolek: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL June 21, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -586 Re: Former Public Official /Public Employee; Section 1103(g); Attorney Examiner II; Commonwealth of Pennsylvania; Department of Public 1Nelfare; Attorney; Legal Representation. This responds to your letter of May 19, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether, in light of the Commonwealth Court's decision in Shaulis v. State Ethics Commission, 739 A.2d 1091 (Pa. Cmwlth. 1999), Section 1103(g) of the Public Official and Employee Ethics Act ("Ethics Act ") imposes restrictions upon an attorney following termination of employment as Attorney Examiner II with the Commonwealth of Pennsylvania, Department of Public Welfare. Facts: On October 8, 1999, you resigned from your position as Attorney miner II for the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW'), Bureau of Hearings and Appeals. As an attorney for DPW, you conducted administrative hearings and prepared adjudications of administrative appeals. Your current employer represents many clients who have appeals pending before DPW, Bureau of Hearings and Appeals. You request an advisory opinion regarding representation of clients before your former governmental agency. You are particularly interested in the State Ethics Commission's interpretation of Shaulis v. State Ethics Commission, 739 A.2d 1091 (Pa. Cmwlth. 1999), and what effect, if any, it has on your ability to practice before your former governmental agency. It is your understanding that Shaulis generally held that the restrictions of the State Ethics Commission regarding the practice of a former Commonwealth attorney before his former agency are invalid. In light of Shaulis, you inquire as to whether you may represent clients before DPW and the Bureau of Hearings and Appeals. You state that this issue substantially affects your practice of law. 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 Kociolek, 00 -586 June 21, 2000 Page 2 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In the former capacity as Attorney Examiner II with the Commonwealth of Pennsylvania, Department of Public Welfare, Bureau of Hearings and Appeals, you would be considered a public official /public employee 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 service with DPW, you became a "former" public official /public employee. Former public officials /public employees are subject to Section 1103(g) of the Ethics Act which restricts the former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated." Id. Section 1103(g) of the Ethics Act 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) (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: 65 Pa.C.S. §1102. 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. "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 overnment 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. Kociolek, 00 -586 June 21, 2000 Page 3 The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee Tiimself, 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 ublic 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 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 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 /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 is the Department of Public Welfare in its entirety, including but not limited to the Bureau of Hearing and Appeals. Therefore, for the first year after termination of service with the Department of Public Welfare, Section 1103(g) of the Ethics Act would apply and restrict your "representation" of "persons" before the Department of Public Welfare. Having set forth the restrictions of Section 1103(g), your specific inquiry regarding the impact of the Shaulis case will now be addressed. Kociolek, 00 -586 June 21, 2000 Page 4 Historically, following the 1982 landmark case of Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327 (Pa. Cmwlth. 1981), affd per curiam, 498 Pa. 589, 450 A.2d 613 (1982), the State Ethics Commission co sn stently held that the predecessor provisions of Section 1103(g) could not be applied to restrict a former public official's /public employee'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. Only non -legal representation before the former governmental body was restricted. However, in a recent ruling by the Supreme Court of Pennsylvania, specifically P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (Pa. 1999), the Supreme Court drew a clear distinction between the regulation of attorneys specifically, which intrudes upon the Court's jurisdiction, as opposed to the regulation of groups that happen to include attorneys, which does not intrude on the Court's jurisdiction. The Commission's ruling in Shaulis, Opinion No. 99 -003, issued March 24, 1999, applied P.J.S. and set a new precedent with regard to the restrictions imposed by Section 3(g) of the Ethics Act upon former public officials /public employees who happen to be attorneys engaged in the practice of law. In reviewing P.J.S., the Commission found that the Section 1103(g) restrictions fit precisely within the parameters enunciated by the Supreme Court. The Commission held that based upon P.J.S., supra, the restrictions of Section 1103(g) apply to restrict a former public ffi ocial /pubic employee even as to the practice of law before the former governmental body. The Commission's ruling in this regard was to be applied prospectively only, from the date of issuance of the Shaulis Opinion. The Shaulis Opinion was appealed to Commonwealth Court. Commonwealth Court rever Shaulis Opinion "insofar as it attempts to apply the provisions of Section 1103(g) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(g) to [Shaulis' representation, as an attorney, of clients before the Department of Revenue and the Courts of this Commonwealth.' Shaulis v. State Ethics Commission, 739 A.2d 1091, 1106 (Pa. Cmwlth. 1999). On November 1, 1999, the Commission filed a petition for Allowance of Appeal with the Supreme Court of Pennsylvania. On April 11, 2000, the Supreme Court of Pennsylvania granted the Petition for Allowance of Appeal, limited to the following issues: 1. Whether the lower Court's decision, which continues to exempt former public officials /public employees who happen to be attorneys from the restrictions of Section 1103(g) of the Ethics Act, conflicts with the controlling precedent set by the Supreme Court of Pennsylvania in P.J.S., supra, that attorneys may be regulated by the State Ethics Commiss an s part of a class which includes non - lawyers. 2. Did the lower Court exceed the bounds of appellate jurisdiction and act contrary to longstanding judicial precedent, including its own "on point" ruling, by entertaining this matter as an appeal from an advisory opinion? Pursuant to Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure, the taking of an appeal by the Commonwealth operates as a supersedeas in its favor. Pa.R.A.P 1736(b). Given that the Commission's appeal of the Commonwealth Court decision operates as an automatic supersedeas, the Court's decision is inoperative pending the Supreme Court's ruling. Kociolek, 00 -586 June 21, 2000 Page 5 Therefore, pending a Supreme Court ruling on the aforementioned appeal, it is the view of the State Ethics Commission that Section 1103(g) would restrict you from the representation of "persons" for promised or actual compensation before DPW for one year following your termination of employment with DPW, even if such representation constitutes the practice of law. 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 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act 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 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 or the Rules of Professional Conduct. Conclusion: In the former capacity as Attorney Examiner 11 with the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW'), Bureau of Hearings and Appeals, 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 et seq. Pending the Supreme Court's ruling in Shaulis v. State Ethics Commission, 739 A 2d 1091 (Pa. Cmwlth. 1999), it is the view of the State Ethics Commission that Section 1103(g) would restrict you from the representation of clients for promised or actual compensation before DPW for one year following your termination of employment with DPW, even if such representation constitutes the practice of law. Your former governmental body is DPW in its entirety. 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 Kociolek, 00 -586 June 21, 2000 Page 6 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. rely, • ib ncent J. � , ko Chief Counsel