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HomeMy WebLinkAbout01-008 ConfidentialOPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey DATE DECIDED: November 15, 2001 DATE MAILED: November 30, 2001 01 -008 Re: Conflict; Former Public Official /Employee; Section 1103(g); Attorney; A; Board B; Litigation; Representation of Clients in Cases Involving the Former Governmental Body. This Opinion is issued in response to your letter of August 28, 2001, by which you requested a confidential advisory from the State Ethics Commission. I. ISSUE: Whether Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g), presents any restrictions upon an attorney following termination of employment with the A Board B. II. FACTUAL BASIS FOR DETERMINATION: As an attorney employed by the A Board B, you seek a confidential opinion from the State Ethics Commission. You have submitted facts which may be fairly summarized as follows. In your current position, you defend Board B in personal injury cases and in actions involving alleged civil rights violations. You state that these cases are heard in the C Court of Common Pleas, appellate level, and the United States District Court for the D District of Pennsylvania. In addition, you defend Board B in actions brought by Es under the F Act. Such cases are initially handled through an administrative hearing process before an impartial hearing officer appointed by the G in H. Appeals are handled in Federal Court. You are contemplating terminating your employment with the A. You ask whether Section 1103(g) of the Ethics Act would preclude you from representing injured Confidential Opinion, 01 -008 November 30, 2001 Page 2 persons and /or Es and Is in legal matters where the A would be named as a defendant. You state that your inquiry does not encompass any role in representing individuals before the Board B, such as, for example, with regard to Js, Ks, and the like. III. 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 t e requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, this 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an attorney for the A Board B, you would be considered a public employee as that term is defined in 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 the A, you would become a "former" 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." 65 Pa.C.S. § 1103(g). Section 1103(g) of the Ethics Act provides as follows: § 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: § 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 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 Confidential Opinion, 01 -008 November 30, 2001 Page 3 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 "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 1103(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 would be associated upon termination of your current public employment would be the A in its entirety, including, but not limited to, Board B. Therefore, for the first year after termination of your employment with the A, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the A. Having set forth the restrictions of Section 1103(g), we shall now address your specific inquiry as to whether Section 1103(g) of the Ethics Act would preclude you as Confidential Opinion, 01 -008 November 30, 2001 Page 4 an attorney from representing individuals in legal matters where the A would be named as a defendant. Historically, following the 1982 landmark case of Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 434 A.2d 1327 (Pa. Cmwlth. 1981), aff'd per curiam, 498 Pa. 589, 450 A.2d 613 (1982), this Commission consistently 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 1999 ruling by the Supreme Court of Pennsylvania, specifically P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (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 upon the Court's jurisdiction. This Commission's ruling in Shaulis, Opinion 99 -003, issued March 24, 1999, applied P.J.S. and set a new precedent with regard to the restrictions imposed by Section 1103(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., this Commission found that the Section 1103(g) restrictions fit precisely within the parameters enunciated by the Supreme Court. This Commission held that based upon P.J.S., supra, the restrictions of Section 1103(g) apply to restrict a former public official /public employee even as to the practice of law before the former governmental body. Such holding was to be applied prospectively only, from the date of issuance of the Shaulis Opinion. The Shaulis Opinion was appealed to the Commonwealth Court of Pennsylvania. Commonwealth Court reversed the 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, this 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. Does the lower Court's decision - -which continues to exempt former public officials /employees who happen to be attorneys from the restrictions of Section 1103(g) of the Ethics Act -- conflict with the controlling precedent set by the Supreme Court of Pennsylvania in P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999), that attorneys may be regulated by the State Ethics Commission as 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 the Shaulis matter as an appeal from an advisory opinion? Shaulis v. State Ethics Commission, 561 Pa. 212, 749 A.2d 910 (2000). 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. Confidential Opinion, 01 -008 November 30, 2001 Page 5 Pa.R.A.P 1736(b). Given that this Commission's appeal of the Commonwealth Court decision operated as an automatic supersedeas, the Commonwealth Court's decision is inoperative pending the Supreme Court's ruling. Therefore, pending a Supreme Court ruling on the aforementioned appeal, it is the view of this Commission that Section 1103(g) would restrict you from representing "persons" for promised or actual compensation before the A for one year following your termination of employment with the A, even if such representation would constitute the practice of law. Section 1103(g) of the Ethics Act would not preclude you from representing clients in case(s) before others not included within your former governmental body, such as courts, even if the A would be named as a defendant. However, you could not personally contact your former governmental body on behalf of your client(s), nor could you participate in negotiations on behalf of client(s) where your former governmental body would be participating in such negotiations, Shaulis, Opinion 99 -003, unless such contacts /negotiations would be initiated or directed by the court or administrative tribunal /entity. 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. 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 Public School Code of 1949 or the Rules of Professional Conduct. IV. CONCLUSION: An attorney for the A Board B would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ("Ethics Act "). Upon termination of employment with the A, the attorney would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the A in its entirety, including, but not limited to, Board B. The restrictions of Section 1103(g) as outlined above would have to be observed by the former public employee. Pending the Supreme Court's ruling in Shaulis v. State Ethics Commission, No. 0044 M.D. Appeal Docket 2000, it is the view of this Commission that Section 1103(g) of the Ethics Act would restrict the former public employee from representing clients for promised or actual compensation before the A for one year following termination of employment with the A, even if such representation would constitute the practice of law. Section 1103(g) of the Ethics Act would not preclude the former public employee from representing clients in case(s) before others not included within the former governmental body, such as courts, even if the A would be named as a defendant. However, the former public employee could not personally contact the former governmental body on behalf of client(s), nor could the former public employee participate in negotiations on behalf of client(s) where the former governmental body would be participating in such negotiations, unless initiated or directed by the court or administrative tribunal /entity. The propriety of the proposed conduct has only been addressed under the Ethics Act. Confidential Opinion, 01 -008 November 30, 2001 Page 6 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(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Daneen E. Reese Chair