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Home My WebLink About23-555 LaMano 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 November 20, 2023 To the Requester: Anna LaMano, Esquire 23-555 Dear Ms. LaMano: This responds to your letter dated October 31, 2023, by which you requested an 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 an Assistant Counsel with the Pennsylvania Department of Health (“Department of Health”), 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 prohibit you from representing your new employer in its litigation against the Pennsylvania Department of Education (“Department of Education”). Brief Answer: NO. The post-employment restrictions of Section 1103(g) of the Ethics Act would not prohibit you from representing your new employer in its litigation against the Department of Education. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Effective October 20, 2023, your employment as an Assistant Counsel with the Department of Health ended. On October 23, 2023, you began working for your new employer, which is not a Commonwealth agency. Your new employer has filed a lawsuit against the Department of LaMano, 23-555 November 20, 2023 Page 2 Education. To date, you have not participated in any manner in your new employer’s litigation against the Department of Education. The Department of Health is the only agency that you represented during your Commonwealth employment. You had limited contact with individuals employed by the Department of Education, and your position did not afford you access to sensitive or confidential information of the Department of Education. From time to time, you coordinated with an attorney from the Department of Education in the course of responding to Right-to-Know requests that were received by both the Department of Health and the Department of Education. You and this same attorney from the Department of Education co-chaired the litigation group of the Right-to-Know Practice Group within the Governor’s Office of General Counsel. The Right-to-Know Practice Group did not involve the exchange of sensitive agency information. You seek guidance as to whether the post-employment restrictions of the Ethics Act would prohibit you from representing your new employer in its litigation against the Department of Education. 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 an Assistant Counsel with the Department of Health, 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 Department of Health, 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 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. LaMano, 23-555 November 20, 2023 Page 3 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 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 an attorney 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). It is important to note that although Section 1103(g) of the Ethics Act may not be applied to restrict a former public official/public employee — who is an attorney — from lobbying the former governmental body during the first year following termination of public service/public employment because lobbying by an attorney is the practice of law (see, Gmerek, supra), by Order of the Pennsylvania Supreme Court dated April 11, 2023, Rule 1.19 of the Rules of Professional Conduct was amended to include the following subsection regarding lawyers acting as lobbyists: LaMano, 23-555 November 20, 2023 Page 4 Rule 1.19 Lawyers Acting as Lobbyists (c) A lawyer whose service as a public officer or public employee of a governmental body concludes on or after June 1, 2023, shall not act as alobbyist, as defined in any statute, resolution passed or adopted by either house of the Legislature, regulation promulgated by the Executive Branch or any agency of the Commonwealth of Pennsylvania or ordinance enacted by a local government unit, on any matter before the governmental body with which the lawyer had been associated for one year after termination of the lawyer's service as a public officer or public employee. Rule of Professional Conduct 1.19(c). Because the issue of whether a former public official/public employee — who is an attorney — may act as a lobbyist before the former governmental body is not governed by Section 1103(g) of the Ethics Act but rather is governed by the Rules of Professional Conduct, which the Commission does not have the statutory jurisdiction to interpret or administer, the Commission may not address questions regarding such lobbying activity. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The governmental body with which you are deemed to have been associated upon termination of your employment with the Department of Health is the Department of Health in its entirety. Therefore, for the first year following termination of your employment with the Department of Health, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” — including but not limited to your new employer — before the Department of Health to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Confidential Opinion, 19-001. Section 1103(g) of the Ethics Act would not prohibit you from representing your new employer in its litigation against the Department of Education. 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 of conduct other than the Ethics Act has not been considered. Conclusion: During your employment as an Assistant Counsel with the Department of Health, 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 Department of Health, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. Your former governmental body is the Department of Health in its entirety. For the first year following termination of your employment with the Department of Health, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” — including but not limited to your new employer — before the Department of Health to the extent such representation would not LaMano, 23-555 November 20, 2023 Page 5 constitute the practice of law. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from representing your new employer in its litigation against the Department of Education. 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 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). Failureto 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