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HomeMy WebLinkAbout03-592 PanzerThomas E. Panzer, Esq. 748 Longstreth Road Warminster, PA 18974 Re: Former Public Official; Section 1103(g); Township; Supervisor; Solicitor; Zoning Hearing Board; Legal Representation. Dear Mr. Panzer: ADVICE OF COUNSEL September 25, 2003 03 -592 This responds to your letter of August 21, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether under the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., a township supervisor who previously served as solicitor to a zoning hearing board may once again serve as solicitor to the zoning hearing board immediately upon completion of his term as a township supervisor. Facts: As a Township Supervisor for Warminster Township ( "Township "), you seek advisory from the State Ethics Commission regarding your prospective appointment as Solicitor to the Warminster Township Zoning Hearing Board ( "Zoning Hearing Board "). You have submitted facts, which may be fairly summarized as follows. Prior to serving as a Township Supervisor, you served as Solicitor to the Zoning Hearing Board. You ask whether you may return to your former position as Solicitor to the Zoning Hearing Board immediately after your term as Supervisor expires on December 31, 2003. You specifically inquire whether such conduct would violate Section 1103(g) or any other section of the Ethics Act or any other applicable 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 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. Panzer 03 -592 September 25, 2003 Page 2 As a Supervisor for Warminster Township ( "Township "), 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 would become a "former public official" subject to Section 1103(g) of the Ethics Act. 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 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 /public 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, Panzer 03 -592 September 25, 2003 Page 3 constitutes an attempt to influence the former governmental body. Section 1103(g) also f 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 former public official /public employee may not be identified on documents submitted to the former governmental body. The former 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() 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 90 -0O6 Sharp, Opinion 90- 009 -R. The governmental body with which you would be associated upon termination of public service would be the Township in its entirety, but would not extend to the Zoning Hearing Board, which is considered a separate governmental body. See, Matergia, Advice of Counsel, 91 -593. Therefore, for the first year after terminations service with the Township, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Township. To the extent the Township would be involved in Zoning Hearing Board matters, Section 1103(g) of the Ethics Act would prohibit you as Solicitor for the Zoning Hearing Board from engaging in certain activities including, but not limited to, making personal appearances before the Township and submitting documents containing your name to the Township. The restrictions under Section 1103(g) would apply to you even if such representation would constitute the practice of law. Shaulis v. State Ethics Commission, 739 A.2d 1091 (Pa. Commw. 1999). 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 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 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 Panzer 03 -592 September 25, 2003 Page 4 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 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., 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 official /public 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 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. Commw. 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 Commission as paw 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. 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 the Township for one year following your termination of service with the Township, even if such representation would constitute 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 /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 Panzer 03 -592 September 25, 2003 Page 5 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 Second Class Township Code or the Rules of Professional Conduct. Conclusion: As a Supervisor for Warminster Township ( "Township "), you would be considered a "public official' as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with the Township, you would become a "former public official" subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be associated upon termination of public service would be the Township in its entirety, but would not extend to the Zoning Hearing Board, which would be considered a separate governmental body. To the extent the Township would be involved in Zoning Hearing Board matters, as Solicitor for the Zoning Hearing Board, Section 1103(g) of the Ethics Act would prohibit you from engaging in certain activities including, but not limited to, making personal appearances before the Township and submitting documents containing your name to the Township. Pending the Supreme Court's ruling in Shaulis v. State Ethics Commission, 739 A.2d 1091 (Pa. Commw. 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 the Township for one year following your termination of employment with the Township, even if such representation would constitute the practice of law. Your former governmental body is the Township 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 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, Vincent J. Dopko Chief Counsel