HomeMy WebLinkAbout04-524 ConfidentialADVICE OF COUNSEL
March 25, 2004
04 -524
Re: Former Public Official /Employee; Section 1103(g); Member; Chairman;
Pennsylvania Board of A; B; Attorney; Legal Representation; Shaulis v.
Pennsylvania State Ethics Commission, Pa. 833 A.2d 123 (2003).
This responds to your letter of February 23, 2004, by which you requested a
confidential advice from the State Ethics Commission.
Issue: Whether and to what extent Section 1103(g) of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., imposes restrictions upon
an attorney following termination of service as a member of the Pennsylvania Board of A.
Facts: From [date] through [date], you served as B. Thereafter, you served as a
Member of the Pennsylvania Board of A from date , through [date]. Governor Tom
Ridge appointed you Chairman of the Board of A from [date] until your resignation,
effective [date]. You have submitted copies of the job descriptions for Board Member
and Board Chairman, as well as relevant portions of the [enabling statute], pertaining to
the powers and duties of Board Members and the Board Chairman, which documents
are incorporated herein by reference.
On [date], you returned to the private practice of law in Pittsburgh. You state that
you have not represented any client, with promised or actual compensation, before the
Board of A. Now that you have been working in the p rivate sector for over one year,
you inquire as to your prospective representation of who may have matters
before the Board of A, as well as those boards and commissions for which it provides
services, namely, the C, the D, and the E.
You ask whether the Ethics Act would prohibit you from representing clients who
may have matters before the Board of A, the boards and commissions for which it
provides services, and the F.
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 IDased
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.
Confidential Advice 04 -524
March 25, 2004
Page 2
In the former capacity as a Member /Chairman of the Board of A, 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 became a "former public official" subject to Section
1103(g) of the Ethics Act.
Former public officials /public employees are subject to Section 1103(g) of the
Ethics Act which restricts the former public official /public employee with regard to
"representing" a "person" before "the overnmental body with which he has been
associated." Id. 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 Supreme
Court has the exclusive authority to regulate an attorney's conduct in that regard. Shaulis v.
Pennsylvania State Ethics Commission, Pa. 833 A.2d 123 (2003).
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-hiimself, 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
Confidential Advice 04 -524
March 25, 2004
Page 3
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 /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, constitutes an attempt to influence the former governmental body. Section 3(g)
also 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(g) 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 /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 No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you were associated upon termination of
public service was the Board of A in its entirety. Based upon the factual assumption
that you were not a member of the C or the E, or employed by or appointed to the D,
said entities were not a part of your former governmental body.
It is noted that as of the date of your request for an advisory, the one -year period
of restricted activity as to the Board of A expired on [date]. Similarly, although the F was
your former governmental body for purposes of the one -year restriction when you
terminated your employment as B on [date], that one -year prohibition expired as well. In
that the one -year periods as to the Board of A and the F have expired, Section 1103(g) of
the Ethics Act no longer has applicability as to non -legal representation before the Board
of A and the F. Further, in that Section 1103(g) may not be applied to restrict an
attorney's conduct insofar as it constitutes the practice of law, you would not be prohibited
from representing clients who may have matters before the Board of A and the F.
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) oft the
Ethics Act provide in part that no person shall offer to a public official /employee and no
public official /employee shall solicit or accept anything of monetary value based upon
Confidential Advice 04 -524
March 25, 2004
Page 4
the understanding that the vote, official action, or judgment of the public official/
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 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 Governor's Code of Conduct or the Rules of Professional Conduct.
Conclusion: In the former capacity as a Member /Chairman of the Pennsylvania
board of A, you would be considered a public official" subject to the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 a.C.S. § 1101 et seq. Upon termination of
service with the Board of A, you became a "former public official" subject to Section
1103(g) of the Ethics Act. The governmental body with which you were associated
upon termination of public service was the Board of A in its entirety. Based upon the
factual assumption that you were not a member of the C or the E, or employed by or
appointed to the D, said entities were not a part of your former governmental body.
The one -year periods of restricted activity as to the Board of A and the F have
expired. Therefore, Section 1103(g) of the Ethics Act no longer has applicability as to
non-legal representation before the Board of A and the F. Further, in that Section
1103(g) may not be applied to restrict an attorney's conduct insofar as it constitutes the
practice of law, you would not be prohibited from representing clients who may have
matters before the Board of A and the F.
Further, the Ethics Act requires 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