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Home My WebLink About23-545 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: www.ethics.pa.gov TOLL FREE: 1-800-932-0936 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 9, 2023 To the Requester: 23-545 This responds to your letter dated July 18, 2023, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: Whether, following termination of your employment as a \[Position\] with the \[Commonwealth Agency\], the post-employment restrictions of Section 1103(g) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(g), would apply to prohibit you, in your role as an associate with a law firm, from lobbying the \[Commonwealth Agency\] on behalf of clients of the law firm. Brief Answer: NO. Based upon judicial precedents, given your status as an attorney, Section 1103(g) of the Ethics Act would not prohibit you, in your role as an associate with the law firm, from lobbying your “former governmental body,” the \[Commonwealth Agency\], on behalf of clients of the law firm. Facts: You request a confidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. In \[Month, Year\], you terminated your employment as a \[Position\] with the \[Commonwealth Agency\], in which capacity you were an \[Attorney Position\] with the \[Unit\]. On \[Date\], you began employment as an associate with \[a Particular Law Firm\] (“the Firm”). Effective \[Date\], you became a \[Position Title\] with the Firm, in which capacity you will be called Confidential Advice, 23-545 August 9, 2023 Page 2 upon to lobby the executive branch of the Commonwealth government, including the \[Commonwealth Agency\], on behalf of clients of the Firm. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment with the \[Commonwealth Agency\]. In particular, you seek guidance as to whether you would be permitted to lobby the \[Commonwealth Agency\] or other entities within the executive branch of the Commonwealth government on behalf of clientsof the Firm. 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 of the material facts. During your employment as a \[Position\] with the \[Commonwealth Agency\], you were considered a “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 your employment with the \[Commonwealth Agency\], you became a “former public employee” subject to Section 1103(g) of the Ethics Act. 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 “representing” a “person” before “the governmental body with which he has been associated”: § 1103. Restricted activities (g) Former official or employee.--No former public official or public employee shall representa 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 Confidential Advice, 23-545 August 9, 2023 Page 3 “Represent.” To act on behalf of any other person in any activity which includes, but is not limitedto, 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term “represent” is also broadly defined to prohibit acting on behalf of any person in anyactivity. However, Section 1103(g) of the Ethics Act may not be applied to restrict an attorney’s conduct insofar as it constitutes the practice of law because the Pennsylvania Supreme Court has the exclusive authority to regulate an attorney’s conduct in that regard. Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003); cf., Yocum v. Pennsylvania Gaming Control Board, 639 Pa. 521, 161 A.3d 228 (2017). Additionally, the Commonwealth Court of Pennsylvania has held that lobbying by a lawyer is the practice of law. Gmerek v. State Ethics Commission, 751 A.2d 1241 (Pa. Cmwlth. 2000), affirmed by evenly divided Court, 569 Pa. 579, 807 A.2d 812 (2002). Therefore, you are advised that lobbying services that you (an attorney) would provide would be considered the practice of law. Id. The governmental body with which you are deemed to have been associated upon termination of your employment with the \[Commonwealth Agency\] is the \[Commonwealth Agency\] in its entirety. Therefore, for the first year following termination of your employment with the \[Commonwealth Agency\], Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the \[Commonwealth Agency\]to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Confidential Opinion, 19-001. Given your status as an attorney, Section 1103(g) of the Ethics Act would not prohibit you, in your role as a \[Position Title\] with the Firm, from lobbying the \[Commonwealth Agency\] or other entities within the executive branch of the Commonwealth government on behalf of clients of the Firm (cf., Shaulis, supra; Gmerek, supra; Confidential Opinion, 19-001). Confidential Advice, 23-545 August 9, 2023 Page 4 Conclusion: During your employment as a \[Position\] with the \[Commonwealth Agency\], you were considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your employmentwith the \[Commonwealth Agency\], you became a “former public employee” subject to Section 1103(g) of the Ethics Act. Your former governmental body is the \[Commonwealth Agency\]in its entirety. For the first year following terminationof your employment with the \[Commonwealth Agency\], Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the \[Commonwealth Agency\] to the extent such representation would not constitute the practice of law. The restrictions as to representation outlined above must be followed.Given your status as an attorney, Section 1103(g) of the Ethics Act would not prohibit you, in your role as a \[Position Title\] with the Firm, from lobbying the \[Commonwealth Agency\]or other entities within the executive branch of the Commonwealth government on behalf of clients of the Firm. 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. An adapted version of this letter will be made available as a public record. 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 receivedat 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. Respectfully, Bridget K. Guilfoyle Chief Counsel