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HomeMy WebLinkAbout05-583 ConfidentialADVICE OF COUNSEL October 20, 2005 05 -583 Re: Former Public Official /Public Employee; Section 1103(g); Township Commissioner; Township Solicitor; Attorney; Legal Representation; Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003). This responds to your letter of September 20, 2005, by which you requested a confidential advisory 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. would restrict a former township commissioner with regard to accepting an appointment as solicitor to the township board of commissioners. Facts: As a Township Commissioner for A Township, B County, you seek a confidential advisory from the State Ethics Commission based upon the following submitted facts. You are currently serving your third term as a Township Commissioner. You are considering resigning and applying to the Township Board of Commissioners for the position of Township Solicitor, if this position becomes available. You state that you have reviewed the Ethics Act, specifically, Section 1103 pertaining to restrictive activities, but have not found any subsection in the Ethics Act on point. You state our understanding that Section 1103(g) would prohibit you from representing an individual before the Township Board of Commissioners for a period of one year. However, you see nothing in that section that refers to actually accepting an appointment by the governing body that a public official /employee served on prior to resignation. Therefore, you ask whether you may accept an appointment by the Township Board of Commissioners to the position of Township Solicitor following termination of service as a Township Commissioner. 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 Confidential Advice, 05 -583 October 20, 2005 Page 2 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. As a Township Commissioner for A Township, B County, 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 service as a Township Commissioner, you would become a "former" public official. Former public officials are subject to Section 1103(g) of the Ethics Act, which restricts the former public official with regard to "representing" a "person" before the governmental 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, 574 Pa. 680, 833 A.2d 123 (2003). Therefore, upon termination of service with A Township as a Township Commissioner, Section 1103(g) of the Ethics Act could not be applied to restrict you insofar as your activity would constitute the practice of law. On the other hand, Section 1103(g) would apply to restrict you as to other, non- legal representation before your former governmental body. 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 Confidential Advice, 05 -583 October 20, 2005 Page 3 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 himself, 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 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 ublic 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 would be associated upon termination of public service is A Township in its entirety. Therefore, for the first year after termination of service with A Township, Section 1103(g) of the Ethics Act would apply and restrict your "representation" of "persons" before A Township to the extent such representation would not constitute the practice of law. 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) Confidential Advice, 05 -583 October 20, 2005 Page 4 of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of 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 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 Rules of Professional Conduct. Conclusion: As a Township Commissioner for A Township, B County, you would be considered a public official subject to the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with A Township, Section 1103(g) of the Ethics Act would not apply to restrict you insofar as your conduct would constitute the practice of law. However, as to conduct that would not constitute the practice of law, Section 1103(g) would apply to restrict you, and those restrictions as outlined above would have to be followed. The former governmental body is A Township in its entirety. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act would require 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 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. Sincerely, Vincent J. Dopko Chief Counsel