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Home My WebLink About21-518 Messina PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 14, 2021 To the Requester: Joseph F. Messina, Esquire 21-518 Dear Mr. Messina: This responds to your letter dated March 25, 2021, by which you requested an advisory , seeking guidance as to the issue presented below: Issue: Whether et seq., would impose any post-government employment restrictions upon you with regard to the practice law with a law firm that has contracts with the City Law Department - Division of Aviation? Brief Answer: NO. The Supreme Court of Pennsylvania held that 65 Pa.C.S. § 1103(g) is unconstitutional and violative of Pa. Const. Art. V, § 10 to the extent that it applies to 1 former government employees, who are also attorneys and engage in the practice of law. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You have been employed by the City of Philadelphia since 1998. For most of your service between June 1998 and June of 2016 you were employed by the City of Philadelphia Law Department as General Counsel to Philadelphia International Airport. In June of 2016 you moved to the Executive staff of the airport as an Assistant Managing Director assigned to the airport. 1 See Shaulis v. Pennsylvania State Ethics Commission, 833 A.2d 123 (Pa. 2003). Messina, 21-518 April 14, 2021 Page 2 Since becoming part of the airport executive staff, you have directly reported to the Chief Executive Officer of the airport, Chellie Cameron. The airport CEO reports to the Director of Commerce as per the City Home Rule Charter. After you complete your service with the City of Philadelphia, you intend to practice law. You seek advice as to whether there are restrictions as to your post-City employment. You are specifically concerned as to whether you can be employed by law firms that have contracts with the City Law Department doing work for the Division of Aviation. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all material facts. As the Assistant Managing Director assigned to the airport (Division of Aviation), you are See, Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon your concession and submitted résumé, in as much as no formal job/position description exists for your specific title/position. Consequently, upon termination of your employment with the Division of Aviation, you would become a former public employee. I. Application of 65 Pa.C.S. § 1103(g) to the Practice of Law: The Supreme Court of Pennsylvania has held that the prohibitions contained in 65 Pa.C.S. § 1103(g) of the Ethics Act are unconstitutional to the extent it specifically targets the practice of law. In reaching its conclusion, the Court found: \[Section 1103(g)\] seeks to prevent a former government employee from representing any person before his or her government employer for one year after the termination of their employment relationship. The Ethics Act defines represent as 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. 65 Pa.C.S. § 1102. While it is conceivable that a non-attorney could engage in such representation and, therefore, Section 1103(g) is not strictly limited in scope to attorneys, it nonetheless targets the practice of law. Shaulis v. Pennsylvania State Ethics Commission, 833 A.2d 123, 131-32 (Pa. 2003). Messina, 21-518 April 14, 2021 Page 3 Accordingly, the Supreme Court of Pennsylvania has declared Section 1103(g) of the Ethics Act unconstitutional, as violative of Article V, Section 10 of the Pennsylvania Constitution, to the extent that Section 1103(g) applies to former government employees who are also attorneys.Id. II. Application of 65 Pa.C.S. § 1103(g) to Representation other than the Practice of Law: To the extent you wish to pursue post-public employment outside the practice of law, while Section 1103(g) does not prohibit a former public official/public employee from accepting a position of employment, it does restrict the former public official/public employee with regard to § 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). 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 body with which a public official/public employee is or has been asso 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 90-006; Sharp, Opinion 90-009-R. The governmental body with which you would be deemed to have been associated upon termination of your employment with the City of Philadelphia Division of Aviation would be the City of Philadelphia Department of Commerce in its entirety, including but not limited to the Division of Aviation. (See Kimilu, Advice 19-520). Therefore, for the first year following termination of your employment with the Division of Aviation, Section 1103(g) of the Ethics Act before City of Philadelphia Department of Commerce to the extent that you are excluding the practice of law. Conclusion: As an Assistant Managing Director assigned to the City of Philadelphia Department of Commerce - Division of Aviation, you are a public employee subject to the Public Official and et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your employment with the Division of Aviation, you would become a former public employee subject to Section 1103(g) Messina, 21-518 April 14, 2021 Page 4 of the Ethics Act. The former governmental body would be the City of Philadelphia Department of Commerce in its entirety, including but not limited to the Division of Aviation. To the extent you wish to engage in the practice of law, Section 1103(g) (65 Pa.C.S. § 1103(g)) is not applicable and would impose no restrictions upon you. To the extent you wish to engage in representation other than the practice of law, Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would involve for the first year following termination of your governmental service. 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. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Sincerely, Brian D. Jacisin Chief Counsel