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HomeMy WebLinkAbout05-008 MooreDear Mr. Moore: 2005. I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella Reverend Scott Pilarz DATE DECIDED: 12/12/05 DATE MAILED: 12/23/05 05 -008 Reizdan B. Moore, Esquire Chief Counsel- Democratic Caucus 619 Main Capitol Building Harrisburg, PA 17120 -2020 Re: Former Public Employee; Section 1103(g); Attorney; Unemployment Compensation Board of Review; Democratic Caucus; Pennsylvania House of Representatives; Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003). This Opinion is issued in response to your advisory request dated December 5, Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose any prohibition or restrictions upon an attorney who terminates employment with the Unemployment Compensation Board of Review with regard to representing her present employer, the House Democratic Caucus, before the Unemployment Compensation Board of Review, within one year after leaving that body. II. FACTUAL BASIS FOR DETERMINATION: As Chief Counsel of the Democratic Caucus of the Pennsylvania House of Representatives (Caucus), you have been authorized by the Caucus to request an advisory opinion from this Commission with respect to the conduct of an attorney (the Attorney) who is employed by the Caucus. You have submitted facts that may be fairly summarized as follows. Moore, 05 -008 December 23, 2005 Page 2 From September 2003 through October 2005, the Attorney was employed by the Unemployment Compensation Board of Review (UCBR). While employed by the UCBR, the Attorney was involved with reviewing unemployment compensation files, writing decisions and orders, and filing briefs with Commonwealth Court. The Attorney terminated employment with the UCBR in October 2005 and, in that same month, commenced employment with the Caucus. The Attorney's current job responsibilities include filing Unemployment Compensation appeals and appearing before the UCBR on behalf of the Caucus. You state that notwithstanding Section 1103(g) of the Ethics Act, the question appears to be controlled by the decision in Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003). You state that if Shaulis is controlling, the Attorney would be allowed to represent her current employer, the Caucus, on matters before the UCBR. Based upon the foregoing facts, you ask whether the Ethics Act would prohibit an attorney who terminates employment with the UCBR from representing her present employer, the Caucus, before the UCBR, within one year after leaving that body. By letter dated December 8, 2005, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on December 12, 2005, you appeared and offered to answer any questions from the Commission. III. 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, this 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 reviewing the unique facts presented in the matter before us, we note that there are two distinct issues that must be resolved. The first issue is whether the Attorney would be considered a former public employee, given her simultaneous status as a current employee of the Caucus. If the answer to the first question is in the affirmative, then the second issue is whether Section 1103(g) would apply. In the instant matter, the Attorney terminated employment with the UCBR and accepted employment with the Caucus. Although it might be argued that Section 1103(g) cannot apply when an individual's employment is with government as opposed to the private sector, this Commission in Ledebur, Opinion 95 -007, rejected this argument in considering whether the Director of Family Resource Networks for the Philadelphia School District would be subject to the restrictions under Section 3(g) of the Ethics Law following his termination of service as a Bureau Director for the Pennsylvania Department of Education. After we determined that the governmental bodies involved, the Pennsylvania Department of Education and the City of Philadelphia School District, were separate and distinct, we noted that "regardless of whether the new employer is a private company or a governmental body, employment might be based upon considerations of contacts with the former governmental body for the benefit of the new employer." Ledebur, at 9. Having determined that the concerns relative to Section 3(g) still existed, we concluded that upon termination of service with the Pennsylvania Department of Education, Ledebur would Moore, 05 -008 December 23, 2005 Page 3 become a former public employee subject to Section 3(g) of the Ethics Law. Based upon Ledebur, supra, we find that the Attorney would be considered a former public employee of the UCBR, and a public employee of the Caucus. We note that the terms, "public employee" and "former public employee" are not mutually exclusive, and an individual, like the Attorney in this matter, may simultaneously be a former public employee as to her former governmental body, and a public employee as to her current government employer. Having established that the Attorney is a former public employee as to the UCBR and a public employee as to the Caucus, we shall now turn to the question of whether Section 1103(g) applies. Former public officials /public employees are generally 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 governmental body with which he has been associated." Id. 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. As for our interpretations of the restrictions of Section 1103(g), they have been so Moore, 05 -008 December 23, 2005 Page 4 often recited in prior Commission rulings that we see no need to reiterate them herein. See, Confidential Opinion, 01 -004; Confidential Opinion, 01 -008; Confidential Opinion, 02- 001; Briechle /Harfman, Opinion 04 -103. We adopt and incorporate herein by reference the recitations of the Section 1103(g) restrictions from those Opinions. In considering whether Section 1103(g) would apply to restrict the Attorney from representing the Caucus before the UCBR, we are guided by the Pennsylvania Supreme Court's decision in Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123 (2003). In Shaulis, the Supreme Court considered the issue of whether Section 1103(g) would be unconstitutional as applied to attorneys who would leave a position of public employment and practice law before their former governmental body within the one - year period. The Supreme Court stated that it retains exclusive authority over the conduct of attorneys generally, but that a governmental employer, in this case the Commonwealth, may proscribe conduct of its current employees, including attorneys, provided that the proscription is not targeted specifically at attorneys. The Court pointed out that Section 1103(g) of the Ethics Act conflicts with this principle in the following two ways. First, it purports to regulate the conduct of former employees. Second, the prohibitions in Section 1103(g) are unconstitutional because they specifically target attorneys. Id. Accordingly, the Supreme Court found that Section 1103(g) of the Ethics Act was unconstitutional, as violative of Article V., Section 10 of the Pennsylvania Constitution, to the extent that it applies to former government employees who are also attorneys. Based upon Shaulis, supra, we conclude that Section 1103(g) of the Ethics Act may not be applied to restrict the Attorney's conduct as a former public employee 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. We do not believe that the Attorney's status as a current public employee of the Caucus is material or legally relevant given that the Supreme Court, in addressing the constitutionality of Section 1103(g) of the Ethics Act in Shaulis, did not make a distinction between attorneys who leave public service for the private practice of law and attorneys who leave one governmental body to accept employment with another governmental body. To make a distinction because the former public employee attorney of the UCBR is a current public employee of the Caucus would result in applying the prohibition to some former public employee attorneys and not to others, depending on whether they seek public or private employment. This would in our view once again create the same constitutional infirmity that existed in Shaulis. Further, the concerns that Section 1103(g) of the Ethics Act seeks to remedy are less likely to arise as to former public employee attorneys who obtain employment with another governmental body rather than the private sector. Accordingly, it is the determination of this Commission that Section 1103(g) of the Ethics Act cannot be applied to restrict the Attorney from representing the Caucus before the UCBR. To the extent the Attorney would be engaged in other, non -legal representation before the UCBR, however, Section 1103(g) would apply. Although Section 1103(g) would not apply to the Attorney as a former public employee, the Ethics Act would apply to her as a current public employee. Notwithstanding the Supreme Court's exclusive authority to regulate and discipline attorneys, the Commonwealth may regulate its employees who also happen to be attorneys as long as such regulation does not conflict with the authority of the Supreme Court. Maunus and Thau v. Pennsylvania State Ethics Commission, 544 A.2d 1324 (Pa. 1988); P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (Pa. 1999). Thus, the provisions of the Ethics Act that apply to current public officials /employees including, but not limited to, Section 1103(a) (relating to conflicts of interest) and Sections 1104 and 1105 (relating to Statements of Financial Interests) may be applied to the Attorney as a current public employee. See, Maunus, supra; P.J.S. supra. 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 Moore, 05 -008 December 23, 2005 Page 5 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 are the Rules of Professional Conduct and particularly Rule 1.11 (relating to special conflicts of interests for former and current government officers and employees); and Rule 1.13 (relating to organization as client). IV. CONCLUSION: An attorney who is employed by a governmental body is a public employee under the Ethics Act and a former public employee of the governmental body by which she was previously employed. Section 1103(g) of the Ethics Act would not prohibit a Commonwealth attorney who terminates employment with one governmental body and accepts a position with another governmental body from representing that governmental body before the former governmental body within one year of termination of service. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. /An adapted version of this letter will be made available as a public record Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair