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HomeMy WebLinkAbout25-538 Kopko 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 September 15, 2025 To the Requester: Kyle C. Kopko, Ph.D., J.D. 25-538 Dear Dr. Kopko: This responds to your letter dated September 2, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon you with regard to performing the duties of your new position as the Executive Director of the County Commissioners Association of Pennsylvania (“CCAP”) following termination of your employment as the Executive Director of the Center for Rural Pennsylvania. Brief Answer: YES. During the first year following termination of your employment with the Center for Rural Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve “representing” a “person” — including but not limited to your new employer, CCAP —before your “former governmental body,” the Center for Rural Pennsylvania, 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. Kopko, 25-538 September 15, 2025 Page 2 From July 1, 2020, to July 31, 2025, you were employed as the Executive Director of the Center for Rural Pennsylvania, which is a legislative service agency of the General Assembly. In that capacity, you reported to a Board of Directors that included four state legislators, two gubernatorial appointees, and seven representatives from institutions of higher education in Pennsylvania. You have submitted copies of the job description for your former position, the enabling legislation that established the Center for Rural Pennsylvania (the Rural Pennsylvania Revitalization Act, 71 P.S. § 1190.101 et seq.), and the Bylaws of the Center for Rural Pennsylvania, which documents are incorporated herein by reference. You are an attorney licensed to practice law in Pennsylvania. On August 1, 2025, you began employment as the Executive Director of CCAP, which is the official educational and advocacy organization for the county commissioners of Pennsylvania’s 67 counties. You have submitted a copy of the Bylaws of CCAP, which document is incorporated herein by reference. As the Executive Director of CCAP, you serve as CCAP’s chief lobbyist. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to performing the duties of your position as the Executive Director of CCAP during the first year following termination of your Commonwealth employment. In particular, you pose the following questions: (1) Whether you would be prohibited from lobbying all Members of the General Assembly; (2) Whether you would be prohibited from participating in media interviews that discuss CCAP’s policy priorities; (3) Whether you would be prohibited from testifying before General Assembly legislative committees; (4) Whether you would be prohibited from participating in CCAP’s annual policy priorities press conference, which is typically held in the Pennsylvania Capitol Rotunda after the New Year; and (5) If you would be prohibited from engaging in any of the above activities, to what extent would you be permitted to interact with Members of the General Assembly and the news media without violating the Ethics Act. 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 Kopko, 25-538 September 15, 2025 Page 3 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. 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. “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 Kopko, 25-538 September 15, 2025 Page 4 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 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. Conclusion: In your former capacity as the Executive Director of the Center for Rural Pennsylvania, you were a public employee subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102. Consequently, upon termination of your employment with the Center for Rural Pennsylvania, you became a former public employee subject to the post-employment restrictions of Section 1103(g) of the Ethics Act. Kopko,25-538 September 15, 2025 Page 5 The governmental body with which you are deemed to have been associated upon termination of youremployment with the CenterforRural Pennsylvania is the Center for Rural Pennsylvania in its entirety. For the first year following termination of your employment with the Center for Rural Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict you from “representing” a “person,” with promised or actual compensation, before the Center for Rural Pennsylvania 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. You are advised that during the first year following termination of your employment with the Center for Rural Pennsylvania, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties in your new role as the Executive Director of CCAP that would involve representing CCAP before the Center for Rural Pennsylvania to the extent such representation would not constitute the practice of law. The restrictions of Section 1103(g) would not be implicated where your activity would involve representing CCAP before an entity other than the Center for Rural Pennsylvania. Therefore, Section 1103(g) would not impose prohibitions or restrictions upon you with regard to: (1) lobbyingMembers of the General Assembly;(2) participatingin media interviews that discuss CCAP’s policy initiatives; (3) testifyingbefore the General Assembly legislative committees; or(4) participatingin CCAP’s annual policy priorities press conference. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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