Loading...
HomeMy WebLinkAbout25-525 Martinez 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 May 16, 2025 To the Requester: Alba E. Martinez, Esquire 25-525 Dear Ms. Martinez: This responds to your email receivedApril 30, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you following termination of your service as the Director of Commerce of the City of Philadelphia (“City”). Brief Answer: YES. During the first year following termination of your service with the City, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve “representing” a “person” before your “former governmental body,” which consists of the City Commerce Department and the Mayor’s Cabinet, to the extent such representation would not constitute the practice of law. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. As of April 30, 2025, you concluded your service as the City Director of Commerce. It is administratively noted thatper the Philadelphia Home Rule Charter (Article III, § 3-101), the City Director of Commerce is the head of the City Commerce Department. The City Director of Commerceis also a member of the Mayor’s Cabinet (Article III, § 3-102). Martinez, 25-525 May 16, 2025 Page 2 You plan to or might engagein the following artistic, entrepreneurial, and legal activities: (A) You are the creator and coproducer of a professional theatrical production, La Guagua 47: The Musical (“the Musical”), which is being developed in formal partnership with Philadelphia Theatre Company. This project is entirely independent of the City, and while the project may seek private and philanthropic support, it will not involve contractual or financial relationships with any City department; (B) You plan to relaunch a neighborhood-based arts and culture hub in the Fairhill neighborhood of the City (“the Arts and Culture Project”) in partnership with HACE, a nonprofit community development corporation. The Arts and Culture Project will support participatory artmaking, youth engagement, and community storytelling connected to the Musical. Programming for the Arts and Culture Project will be funded through foundation grants, private sponsorships, and revenue from ticket sales; (C) You might co-launch a legal practice (“the Legal Practice”) with your spouse within the next year. The Legal Practice would focus on estate planning, immigration law, and small business support. Some clients of the Legal Practice may require assistance in interacting with City agencies such as the City Commerce Department, the City Department of Licenses and Inspections, the City Department of Revenue, or the City Department of Health; and (D) You intend to continue operating your studio, Ritmo Lab (“the Studio”), which is an independent studio for original music, cultural merchandise, and a live performance band. These activities are private and artist-led and do not involve City departments or funding. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to engaging in the aforesaid activities during the first year following termination of your service as the City Director of Commerce. In particular, you pose the following questions: (1) Whether you would be permitted to apply for City-funded arts or education grants for the Arts and Culture Project that would not be administered by the City Commerce Department; (2) Whether you would be permitted to provide assistance to clients of the Legal Practice with regard to licensing or permitting issues and other issues involving interaction with City agencies; (3) Whether your “former governmental body” would extend beyond the City Commerce Department to include the Mayor’s Cabinet or more broadly the City executive branch; Martinez, 25-525 May 16, 2025 Page 3 (4) Whether you would be permitted to participate in public arts or cultural events involving City officials or staff as long as you would not receive compensation to represent a third party and would not engage in lobbying; and (5) Whether you would be permitted to participate in economic development or business events involving City representatives as long as you would not receive compensation to represent a third party and would not engage in lobbying. 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 materialfacts 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. The post-employment restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees. 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: § 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. Martinez, 25-525 May 16, 2025 Page 4 “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: 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. Martinez, 25-525 May 16, 2025 Page 5 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. In your former capacity as the City Director of Commerce, you were a public official/public employee subject to the provisions of the Ethics Act. Upon termination of your service as the City Director of Commerce, you became a former public official/public employee subject to Section 1103(g) of the Ethics Act. The governmental body with which you are deemed to have been associated upon termination of your service as the City Director of Commerce, hereinafter collectively referred to as your “former governmental body,” consists of the City Commerce Department and the Mayor’s Cabinet. For the first year following termination of your service as the City Director of Commerce, Section 1103(g) of the Ethics Act would apply and restrict you from “representing” a “person,” with promised or actual compensation, before your former governmental body to the extent such representation would not constitute the practice of law. Cf., Moore, Opinion 05-008; Confidential Opinion, 19-001. The restrictions as to representation outlined above must be followed. Based upon the submitted facts that the project involving the Musical is entirely independent of the City and will not involve contractual or financial relationships with any City department and that the Studio’s activities do not involve City departments or funding, you are advised that Section 1103(g) of the Ethics Act would not restrict you from performing activities in your roles as the creator and coproducer of the Musical or in your role as the operator of the Studio. This is because the submitted facts indicate that such activities would not involve representation before your former governmental body. Turning to your specific questions, you are advised as follows. In responding to your first question, it is initially noted that in applying for City-funded arts or education grants for the Arts and Culture Project, you would be representing a person (i.e., acting on behalf of a person in an activity). However, the submitted facts do not indicate whether your performance of this activity would involve promised or actual compensation. Additionally, although the grants applied for would not be administered by the City Commerce Department, which is part of your former governmental body, the submitted facts do not indicate whether applying for or being awarded these grants would involve contact or interaction with the Mayor’s Cabinet, which is also part of your former governmental body. Therefore, you are generally advised that Section 1103(g) of the Ethics Act would not prohibit you from applying for City- funded arts or education grants for the Arts and Culture Project that would not be administered by the City Commerce Department as long as in so doing, you would not engage in any activities that Martinez, 25-525 May 16, 2025 Page 6 would involve representation, with promised or actual compensation, before your former governmental body to the extent such representation would not constitute the practice of law. In response to your second question, you are advised thatSection 1103(g)of the Ethics Act would not prohibit you from providing assistance to clients of the Legal Practice with regard to licensing and permitting issues and other issues that would involve interacting with City agencies such as the City Commerce Department, the City Department of Licenses and Inspections, the City Department of Revenue, or the City Department of Health, as such activities would constitute the practice of law. See, Shaulis, supra. Your third question has been addressed above. With respect to your fourth and fifth questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from participating in public arts or cultural events involving City officials or staff or from participating in economic development or business events involving City representatives, where you would not receive compensation to represent a third party and would not engage in lobbying. 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. 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). 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