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Home My WebLink About01-008-R 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 DATE DECIDED: February 4, 2002 DATE MAILED: February 15, 2002 01 -008 -R Re: Conflict; Former Public Official /Employee; Section 1103(g); Attorney; A; Board B; Litigation; Representation of Clients in Cases Involving the Former Governmental Body; Reconsideration; Confidential Opinion, 01 -008. This Confidential Opinion is issued in response to your request for reconsideration of Confidential Opinion, 01 -008. I. ISSUE: 008. Whether this Commission should grant reconsideration of Confidential Opinion, 01- II. FACTUAL BASIS FOR DETERMINATION: This matter initially arose from your advisory request letter dated August 28, 2001. As an attorney employed by the A Board B, you sought a confidential advisory opinion from this Commission. You stated that you had been contemplating terminating your employment with the A. You inquired as to the post - employment restrictions of Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g). As part of your initial inquiry, you provided a detailed description of the nature of your work for the A. You stated that you defend Board B in personal injury cases and in actions involving alleged civil rights violations. These matters are heard in the C Court of Common Pleas, appellate level, and the United States District Court for the D District of Pennsylvania. Additionally, you defend Board B in actions brought by Es under the F Act. Such matters are initially handled through an administrative hearing process before an impartial hearing officer appointed by the State's G located in H, with appeals being handled in Federal Court. Confidential Opinion, 01 -008 -R February 15, 2002 Page 2 Based upon the submitted facts, you asked whether Section 1103(g) of the Ethics Act would preclude you from representing injured persons and /or Es and Is in legal matters in which the A would be named as a defendant. You emphasized that your inquiry did not encompass any role in representing individuals before Board B itself, such as, for example, with regard to Js, Ks, and the like. In response to your request, Confidential Opinion, 01 -008 was issued to you on November 30, 2001. Confidential Opinion, 01 -008 first determined that upon termination of service with the A, you would become a "former" public employee subject to Section 1103(g) of the Ethics Act. Confidential Opinion, 01 -008 at 2. Confidential Opinion, 01 -008 then identified the governmental body with which you would be deemed to have been associated as the A in its entirety, including, but not limited to, Board B. Confidential Opinion, 01 -008 at 3. No other agencies, entities, or forums were identified as being included within your prospective "former governmental body." Confidential Opinion, 01 -008 concluded that for the first year following termination of your employment with the A, Section 1103(g) of the Ethics Act would restrict you from "representing" "persons" before the A, Id. at 3, but would not restrict you as to representation before other agencies or entities. Id. at 3, 5. In addressing your specific inquiry as to whether Section 1103(g) of the Ethics Act would preclude you as an attorney from representing individuals in legal matters where the A would be named as a defendant, Confidential Opinion, 01 -008 advised that pending a Supreme Court ruling in the matter of Shaulis v. State Ethics Commission, 739 A.2d 1091 (Pa. Cmwlth. 1999), alloc. granted, 561 Pa. 212, 749 A.2d 910 (2000), it would be the view of this Commission that during the first year, Section 1103(g) would restrict you from representing "persons" for promised or actual compensation before the A even if such representation would constitute the practice of law. Confidential Opinion, 01 -008 at 5. However, Confidential Opinion, 01 -008 clearly stated that 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. Id. Finally, Confidential Opinion, 01 -008 determined that 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, unless such contacts /negotiations would be initiated or directed by the court or administrative tribunal /entity. Id. You have asked for clarification, or in the alternative, reconsideration, on a very limited basis, specifically as to the phraseology of the following sentence which appears in the Discussion at page 5 of Confidential Opinion, 01 -008 (and is substantively reiterated in the Conclusion): 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. Confidential Opinion, 01 -008 at 5; see, Request Letter of December 11, 2001, at 1. You contend that while the above language provides that there is no restriction on your ability to litigate actions in courts when Board B is a named party, the specific reference to matters convened in a court of law creates a "potential ambiguity" as to matters brought under the F Act. Request Letter of December 11, 2001, at 1. As to the latter, you contend that such proceedings are "synonymous" to the court proceedings specifically referenced in the Opinion because they may not be heard by an A employee or Board B member. Request Letter of December 11, 2001, at 2. You reiterate Confidential Opinion, 01 -008 -R February 15, 2002 Page 3 that as directed by the F Act, Federal regulations and State provisions, the initial dispute is heard before an impartial hearing officer appointed through State Department L. You have asked that Confidential Opinion, 01 -008 be amended to clarify that Section 1103(g) of the Ethics Act would not preclude you from representing clients in cases heard before others not employed by the governmental body such as courts and hearings convened under the F Act. Alternatively, you have asked that to the extent the Opinion interprets Section 1103(g) to specifically prohibit representation of Ns in hearings convened under the F Act and presided over by impartial hearing officers appointed to the proceeding consistent with Federal and State regulations, the Opinion be reconsidered based upon the information contained within your initial inquiry and subsequent Request Letter of December 11, 2001. III. DISCUSSION: We shall initially address the procedural posture of this matter. As noted above, you have requested clarification of Confidential Opinion, 01 -008, and in the alternative, reconsideration. Pursuant to the Commission Regulations, the procedural mechanism for requesting review by this Commission of one of its own Opinions is a request for reconsideration. 51 Pa. Code §§ 13.3(c), (d); 21.29(b), (e). Thus, we must determine whether to reconsider Confidential Opinion, 01 -008. This Commission may exercise broad discretion in determining whether to grant or deny reconsideration as long as such discretion is exercised in a sound manner. Krane, Opinion 84- 001 -R; PSATS v. State Ethics Commission, 499 A.2d 735 (1985). The Regulations of this Commission provide, in pertinent part: §13.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. Confidential Opinion, 01 -008 -R February 15, 2002 Page 4 51 Pa. Code § §13.3(d); 21.29(b), (e). We determine that you have not met the criteria for reconsideration. No material error of law or fact has been made by this Commission, nor have any new facts or evidence been provided which would lead to reversal or modification of the Opinion. Moreover, the phraseology of Confidential Opinion, 01 -008 was clear and could not reasonably be misunderstood. First, Confidential Opinion, 01 -008 correctly advised that for one year following termination of your employment with the A, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before your former governmental body. Second, Confidential Opinion, 01 -008 accurately identified your prospective "former governmental body" as the A. Confidential Opinion, 01 -008 at 3. No other agencies, entities, or forums were included. Third, Confidential Opinion, 01 -008 specifically stated that Section 1103(g) would not restrict you as to agencies or entities other than your former governmental body. Confidential Opinion, 01 -008 at 3, 5. There was no ambiguity in Confidential Opinion, 01 -008, and there was specifically no ambiguity regarding matters under the F Act. Since you factually submitted that matters under the F Act would not involve representation before the A, the only possible conclusion would be that such matters would not trigger the Section 1103(g) restrictions. As for the particular sentence to which you have objected, both on its face and in the context in which it appears, the sentence clearly indicates that courts are only one example of the "others" as to which you would not be restricted under Section 1103(g): 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. Confidential Opinion, 01 -008 at 5 (Emphasis added). In that there has been no material error of fact or law and in the absence of any new facts or evidence, we must deny the request for reconsideration. IV. CONCLUSION: The request for reconsideration of Confidential Opinion, 01 -008 is denied. 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. By the Commission, Daneen E. Reese Confidential Opinion, 01 -008 -R February 15, 2002 Page 5 Chair