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Home My WebLink About24-506 DomenickPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 12, 2024 To the Requester: Debra Domenick, Esquire Dear Ms. Domenick: FACSIMILE: 717-787-0806 WEBSITE: www.ethics.ya.�4ov 24-506 This responds to your letter dated January 8, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether, following termination of your service as a County Commissioner for Lackawanna County, Pennsylvania, 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: (1) practicing law and appearing before Judges of the Lackawanna County Court of Common Pleas and Magisterial District Judges of the Magisterial Districts within Lackawanna County; or (2) being employed as an attorney with the Lackawanna County Public Defender's Office or in some other capacity with Lackawanna County. BriefAnswer: NO. The post -employment restrictions of Section 1103(g) of the Ethics Act would not prohibit you from: (1) practicing law and appearing before Judges of the Lackawanna County Court of Common Pleas and Magisterial District Judges of the Magisterial Districts within Lackawanna County; or (2) being employed as an attorney with the Lackawanna County Public Defender's Office or in some other capacity with Lackawanna County. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Domenic k, 24-506 January 12, 2024 Page 2 In 2019, you were elected as a County Commissioner for Lackawanna County ("County"), Pennsylvania, for a four-year term beginning in 2020. You served as a County Commissioner from 2020 through 2023, and you did not seek reelection. In a private capacity you are an attorney, and you practiced law as a sole practitioner on a limited basis while you served as a County Commissioner. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your service as a County Commissioner. In particular, you ask whether the Ethics Act would permit you to: (1) practice law and appear before Judges of the Lackawanna County Court of Common Pleas and Magisterial District Judges of the Magisterial Districts within the County; or (2) be employed as an attorney with the Lackawanna County Public Defender's Office or in some other capacity with the County. 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. In your former capacity as a County Commissioner, you were 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 your service as a County Commissioner, you became a "former public official" 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. 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: Domenic k, 24-506 January 12, 2024 Page 3 § 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 a� activity. 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 Gamin 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: Rule 1.19 Lawyers Acting as Lobbyists Domenic k, 24-506 January 12, 2024 Page 4 (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 a lobbyist, 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 service as a County Commissioner is the County Board of Commissioners. Therefore, for the first year following termination of your service as a County Commissioner, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the County Board of Commissioners to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Confidential Opinion, 19-001. You are further advised that Section 1103(g) of the Ethics Act would not prohibit you from: (1) practicing law and appearing before Judges of the Lackawanna County Court of Common Pleas and Magisterial District Judges of the Magisterial Districts within the County; or (2) being employed as an attorney with the Lackawanna County Public Defender's Office or in some other capacity with the County. 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 service as a County Commissioner, you were considered a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your service as a County Commissioner, you became a "former public official" subject to Section 1103(g) of the Ethics Act. Your former governmental body is the County Board of Commissioners. For the first year following termination of your service as a County Commissioner, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the County Board of Commissioners to the extent such representation would not constitute the practice of law. The restrictions as to representation outlined above must be Domenick, 24-506 January 12, 2024 Page 5 followed. Section 1103(g) of the Ethics Act would not prohibit you from: (1) practicing law and appearing before Judges of the Lackawanna County Court of Common Pleas and Magisterial District Judges of the Magisterial Districts within the County; or (2) being employed as an attorney with the Lackawanna County Public Defender's Office or in some other capacity with the County. 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. Respectfully, Bridget K. Guilfoyle Chief Counsel