*1 purpose performance has its organization performs or for governmental 66.1. There function.” 65 P.S. of an essential it HARIE is from which could be inferred language is no which would function performing essential Right to Know public agency purposes it a make Law. the creation no the case either suggestion
There designed public to shield agreement was HARIE or public agency is not public view. When records of, a expended account to, funds are party and no exclusively in the agreement is maintained settlement agreement then that should agency’s insurer records a public record. be deemed the Common- the Order of Accordingly, I would reverse wealth Court. joins dissenting opinion.
Chief Justice CAPPY
v. COMMISSION, Appellant, ETHICS PENNSYLVANIA STATE Association, Bar Intervenor. The Commonwealth Pennsylvania. Supreme Court of 10, 2000. Submitted Oct. 1, 2003. Decided Oct. *2 Hittie, Robin for State Ethics Com’n. M. Shaulis, Shaulis, Appellee. for Kathleen K. Kathleen K. Ass’n, Burket, Bar Harrisburg, the Com. Patricia Krise Intervenor. *3 CASTILLE, C.J., NIGRO, CAPPY, and
Before: LAMB, SAYLOR, NEWMAN, EAKIN and JJ.
OPINION Justice NEWMAN. (Commission) State Ethics Commission Pennsylvania
The Court, which of from an Order the Commonwealth appeals and of the Public 1103(g) Official determined Section Act)1 (Ethics as was Employee Ethics Act unconstitutional (Shaulis) Shaulis, it Esquire K. because applied Kathleen 10(c) V, Pennsylvania of the Constitu- violated Article Section authority tion, that this has the which exclusive provides insofar it constitutes attorney conduct of an regulate the herein, we For discussed practice of law.2 the reasons the the of the Commonwealth Court. affirm Order 1103(g) provides as follows: 1. Section of the Act public employee represent person, or shall No former official any the promised compensation, on before with or actual matter year governmental body with been associated for one which he has body. he after leaves that 1103(g). 65 Pa.C.S. V, 10(c) provides full: Constitution Article AND FACTS PROCEDURAL HISTORY 11, 1999, January employed On Shaulis was a Senior III) (Attorney Assistant Counsel the Office of Chief Pennsylvania Department Counsel to of Revenue. On date, days retirement, her eleven before scheduled Commission requesting letter from Shaulis received that the Commission imposed by delineate restrictions the Ethics Act Department when retire from the of Revenue. Specifically, questioned whether Section of the Ethics Act publishing barred her from articles or books Pennsylvania state taxes during year the first her after retire- letter, ment. In the Shaulis articulated her understanding Court, it is this not the Assembly, General which can issue rules regulating attorney prac- manner tices law. Shaulis stated that she believed that Ethics Act could not applied to restrict an attorney’s conduct to the practice extent that it would constitute the of law. The next day, the Commission advised Shaulis that it had received her letter and issue an would Advice in response Counsel to her query.3 Supreme power The prescribe general Court shall have the rules courts, governing procedure practice, justices and conduct of all orders, peace serving process enforcing all officers or judgments any justice decrees peace, including or court power provide assignment reassignment of classes of appeals ac among Lionsor classes several courts as needs of
justice law, require, shall and for admission to the bar and to and the supervision administration of all courts of all officers of Branch, the Judicial if such rules are consistent with this Constitution abridge, enlarge modify rights and neither any nor the substantive litigant, right nor Assembly affect the of the General to determine the jurisdiction any justice peace, court or suspend nor nor alter *4 any repose. statute of limitation or All laws suspended shall be they prescribed extent that are inconsistent with rules under these provisions. 1107(10) provides 3. The Ethics Act in Section and that the Com- Opinion mission will either issue an or an Advice of Counsel when a person purview requests ruling. Opinions the of the Ethics Act by issued public the Commission published are records and are from Anyperson good time to time. who Opinion acts in faith an reliance on Counsel, will penalties. immune criminal and civil Advices of hand, public on the only other are not requester records and the can act good faith reliance on an Advice of Counsel. See 65 Pa.C.S. 1107. 25, 1999, January during pendency the of Shaulis’ re- On Commission, a determination the this Court for quest 149, Commission, v. 555 Pa. issued P.J.S. State (1999), believed, which, set forth A.2d 174 the Commission determining to be the extent its applied standard when authority regulate to activities of its former in-house P.J.S., City of attorneys. City In Solicitor for the Erie into his sought pending investigation to circumvent a activities attorney prevent his an by asserting status as to Commis- to allow him to do so and inquiry. sion’s We declined ex- that: plained jurisdiction infringed of this Court is
The exclusive when attempts regulate to another branch of merely status because of their conduct However, jurisdiction of is attorneys. this Court applied aimed infringed regulation when a at conduct to persons to persons, happen all some of those be attor- neys. 28, 1999, January at 178. On
Id. the Commission notified that, Counsel, it issuing an would Shaulis instead Advice Opinion potential to decision impact issue an due 30, 1999, January responded this Court P.J.S. On Shaulis stating her that P.J.S. did not the Commission’s letter belief any requested ruling. on have effect her 1999, 4, February In a letter dated Commission advised public it for meeting4 February had scheduled a However, 26,1999, question. February consider her meeting told her the Commission cancelled concerning Pennsylvania author state she could materials tax- expressed opinion its in Advice of Coun- es. The Commission sel No. 99-511 follows: response Opinion When the intends to issue an to a Commission advice, request common for the Commission it is Opinion public meeting. Because issued Commis- schedule potential persons requesting affect other than the one sion has the advice, presented allows the case to be in a Commission (the 1107(14) may "[h]old forum. See 65 Pa.C.S. Commission hear- ings, subpoenas compel testimony, take the attendance of issue witnesses”).
In applying 1103(g) question Section to the narrow you posed, specifically 1103(g) have whether Section would prohibit you writing from publishing on articles/books subject taxes, you of State are advised factually, repre- since such activities would not involve your governmental sentation body, before former the De- partment Revenue, they of prohibited by would not be of [Ethics Act]. In light your law, of of regarding comment it is Pennsylvania Supreme noted that the Court’s decision in ... may broadening P.J.S. have a effect insofar as the application of the [Ethics Act] is concerned. particular While not material in this advisory, the P.J.S. decision be a in may considering factor other activities. 99-511, page Advice Counsel No. 3.
By 1, 1999, letter dated March Shaulis asked the Commis- sion to clarify explain Advice of Counsel No. 99-511 to restrictions 1103(g) imposes upon attorney that Section private who is entering practice following retirement Department Specifically, of Revenue.5 posed Shaulis five addi- questions: tional
(1) she, could attorney, represent as an a client before the Revenue; Board of Finance and (2) she, could represent as an attorney, a client before the Revenue; Board of Appeals Department (3) she, could as an attorney, participate negotiations in behalf of a client with respect a case docketed at the Court, Commonwealth in Department which the Revenue participating; (4) participate could she a task force to assist drafting of proposed legislation; tax letter, In her sought Shaulis stated that before she on whether advice taxes, publish she subject could articles books on the of state she felt represent Department secure could that she clients before the year Revenue retiring. explained within one that she re- quested response language clarification Advice Counsel discussing No. 99-511 P.J.S. (or she, any attorney might private other could behalf), representative ask a on her own
citizen
De-
or the Chief Counsel
Department of Revenue
*6
partment
interpretation
for
of a tax matter?
an
it
2, 1999,
that
informed Shaulis
On March
Commission
an
request
Opinion.
and would issue
had received her
18,1999, following public meeting,
the Commis-
March
On
The Commission first noted
Opinion
sion
No. 99-003.
issued
Bar
Utility
Public
Commission
that,
on
based
88,
The Commission determined
government employees who
attor-
ther limited to former
were
legal
According-
neys
pertained solely
representation.
nor
P.J.S.,
of
the Commission
ly,
understanding
and based on its
that
not
regulation
was a valid
did
found that Section
regulate the
jurisdiction of this Court to
violate the exclusive
Concerning
of law.
practice
of
and the
conduct
communication, the
contained in the
questions
substantive
represent
could
clients before
Commission ruled
(because
entity is not
of
the Board
Finance
Revenue
Revenue,
employer)
Shaulis’ former
part
Department
of the
(because
drafting
legislation
such
could
in the
tax
assist
However,
representation).
activity does not constitute
(1)
not represent
that Shaulis:
could
Commission concluded
Appeals
Department
the Board of
clients before
(2)
Revenue;
negotiations
not
where the
participate
could
could
Department
participating;
of Revenue would
not,
client,
in her
as an
capacity
attorney representing a
an
request
interpretation
Department
of a tax matter from the
99-003,
Opinion
pages
No.
Revenue.
7-10.
Petition
Shaulis filed a
with
Review
the Commonwealth
Court,
argued
wherein
foregoing
she
limitations
jurisdiction
conduct
her
violated the exclusive
regulate
responded
law. The Commission
Quash,
a Motion to
contending
Opinion
that its
was an adviso
ry opinion,
subject
to appeal,
only
because it
addressed
questions
proposed
future
regarding
conduct of Shaulis.
portions
Shaulis filed a
Motion
Strike
of the
brief
Lobbying
Act,
Commission that referred to
Disclosure
§§
Pa.C.S.
et
seq.,
the matter of Gmerek v. State
(Pa.Cmwlth.2000),
A.2d
af
Commission,6
Court,
evenly
divided
569 Pa.
In a
banc Opinion,
en
the Commonwealth Court
denied the
Quash,
Commission’s Motion to
determining that
limiting
the decision
professional
the
activities of Shaulis
constituted an appealable adjudication.
v.
Shaulis
State Eth-
(en
Commission,
(Pa.Cmwlth.1999)
banc).
ics
On Commission, 1103(g) Section of the finding that ion of the V, Act, Shaulis, violated Article as applied 10(c) Commonwealth Pennsylvania Constitution. The an on the basis that P.J.S. involved distinguished P.J.S. City at the employed as Erie Solicitor time attorney who was investigation by The came under Commission. that he Court, thus, determined that P.J.S. did set Commonwealth who is employee a that a former precedent forth new prohibited representing be from client attorney an could Instead, body. governmental his or before her former for merely stands Court held P.J.S. Commonwealth government employee a current cannot proposition obligations his or ethical as a protected or her shielded status as simply virtue his her government employee attorney. Opinion, Judge McGinley concurring dissenting filed a Judge Flaherty, argued in which that the joined by he Senior right appeal. finding that Shaulis had majority erred McGinley by treating the merits Judge would have reached a request filed Petition for Review original jurisdiction Com- declaratory judgment Judge McGinley agreed Substantively, monwealth Court. Act, Shaulis, applied that Section the Ethics concurring Judge Pellegrini filed was unconstitutional. majority’s agreed disposition in which he with the Opinion, issues. He wrote jurisdictional both the substantive *8 promulgated that had Rule 1.11 to note this Court separately specifi- Pennsylvania of Professional Conduct to Rules government of law former cally regulate the dissented, that Judge stating Leadbetter attorneys.7 (Successive Employment) provides Private 7. Rule 1.11 Government and part follows: in relevant as (a) permit, Except may expressly lawyer a shall not as law otherwise private represent in connection with a matter in which the a client public lawyer personally substantially as a officer or participated government agency employee, appropriate consents after unless Opinion of adjudication the Commission did not an constitute and, therefore, did not appellate jurisdiction come within the of the Commonwealth Court.8
DISCUSSION Court, appeal On to this argu- Commission made two ments, procedural the first and the second As substantive. issue, regards procedural the Commission submits that the Commonwealth Court should have declined to review the determination of the Commission because the Commission viewed its findings advisory creating not a basis for Second, standing. argues the Commission the substan- tive conclusion of the Commonwealth finding that Sec- tion 1103(g) violates the Constitution should be begin reversed. We our procedural discussion mat- ter and then review the constitutional issue. Standing
I. The Commission maintains that the Commonwealth Court exceeded the bounds of appellate jurisdiction its and acted contrary to longstanding judicial precedent by entertaining appeal matter from an advisory opinion of the lawyer consultation. No in a firm lawyer with which that is associat- may knowingly ed representation undertake or continue in such a matter unless: (1) disqualified lawyer any is participation screened from in the therefrom; apportioned matter and part no of the fee promptly given written notice is appropriate government agency to compliance enable it to ascertain provisions with the of this rule. (b) Except may as law expressly permit, otherwise lawyer having lawyer information that the knows is confidential infor- person mation about acquired lawyer when the was a officer employee, may represent private client whose interests are person adverse in a matter in which the information could be used to the disadvantage material person. of that A firm with lawyer may is associated representation undertake or continue only
the matter
disqualified lawyer
if the
any
is screened from
participation in
apportioned
the matter
part
and is
no
of the fee
therefrom.
Judge
express
Leadbetter did
constitutionality
not.
her views on the
of the Ethics Act.
*9
Commission,
v.
on Suehr
Ethics
State
Relying
Commission.
(Pa.Cmwlth.1994),
the Commonwealth
The of the Commission Shaulis lacked 1108(i) standing is not of the Ethics Act meritorious. (Investigations by Appeal) specifically provides Commission— “[a]ny person aggrieved opinion an or which order provisions becomes final accordance with the [the opinion who has direct interest such or shall Act] order and right appeal have the therefrom in accordance with law 1108(i). Thus, general to appeal, rules.” Pa.C.S. (1) is following person aggrieved must exist: decision of (2) Commission; opinion that decision an order final; person a direct aggrieved becomes has opinion interest in the or order. Ethics Act The differentiates order, opinion defining between an terms follows:
“Opinion.” A is- directive the State Ethics Commission 1107(10) pursuant (relating powers sued section commission) setting duties of forth a official’s or public employee’s chapter. duties A “Order.” directive of the State Ethics Commission issued 1107(13) pursuant (relating powers to section and duties commission) at the conclusion of an investigation which findings fact, contains conclusions of penalties. law and *10 § 65 Pa.C.S. 1102. The Act Ethics defines “final order”9 but explain does not required what is for a final opinion. The Saylor dissent Mr. Justice suggests that we refer to the definition of “final order” to understand what is required for opinion final, to become position but this does not take account of the markedly purposes different of an opinion and an order. The Commission issues an opinion in response to a for request advice. 65 Pa.C.S. 1107(10). The Commission issues an order when subject investigation for a possible Ethics Act violation. Pa.C.S. A final 1107(13). step order is the last in the investigatory proceeding and is final deemed because there is nothing left for the Commission to do.
Likewise, we fail to see what steps additional the Commis- sion could have taken to opinion make the issued present case more “final.” Following notice to public, period comment, for and a hearing, the Commission decision, rendered a which it published. proceedings The front of the concluded, Commission had leaving Shaulis with option either to accept the determination of the Commis- sion or to attempt appeal. There was nothing left for the Commission to consider. Accordingly, opinion was final purposes of the Ethics Act. aggrieved
Shaulis was by opinion of the Commission in if she took the actions proscribed, therein she would expose herself to the exact ethical investigation that she was attempting to by forestall seeking the advice of the Commis- sion in place. the first As the noted, Commonwealth Court require Shaulis to potentially violate the Ethics Act in order to present her claims to the courts “jeopardizes her ethical rating, her admission to law the Commonwealth, 1108(f)provides 9. Section part in relevant as follows: days Final order.—Within receipt by the commission of the or, hearing held, record if hearing no is to be days within 30 receipt response commission of the findings to the report, the commission shall issue an order which shall be final. 1108(f). 65 Pa.C.S. Shaulis, community.” legal in the reputation and her Likewise, of the Commission as the decision A.2d at 1100. in pro- clients representing effectively estopped Shaulis or adverse of Revenue Department ceedings before Revenue, interest had a direct she Department Court hold that the Commonwealth Accordingly, we opinion. Quash filed the Commission Motion to properly denied claim. the merits Shaulis’ and considered Constitutionality II. Specifically, matters. turn to the substantive nowWe contention of the Commission’s the merits we consider The Com Act is constitutional. of the Commonwealth that the determination claims mission conflicts 1103(g) is unconstitutional that Section *11 that P.J.S. regulation permits in P.J.S. argues It our decision provided that the attorneys, happen to include groups that exclusively. The Commis comprised group is not regulates employ all that because Section posits sion us to refers unconstitutional. Shaulis similarly, it is not ees Commission, 491 Pa. v. State Wajert in our decision (1980), findings the argues that 439 420 A.2d of attor conduct unconstitutionally regulate Commission She submits government position. they leave their neys once regarding Wajert remains the law of the Commonwealth that that P.J.S. employees and government former the actions conduct of only it deals apply because does employees. current our Shaulis, briefly discuss we position To consider Wajert involved the request of Wajert and P.J.S. holdings County for Pleas of Chester of Common judge of the Court could regarding whether he from the Commission Opinion an year after court within the first before the represent a client that the then responded The Commission resignation. his activity, prompting prohibit would such Ethics Act10 applicable Act, 403(e) 3(e) (repealed), at 65 P.S. the Ethics codified 10. Section represent employee shall former official provided “[n]o gov- any compensation, matter before on person, with or without Judge Wajert declaratory judgment to file action 3(e) unconsti- Commonwealth Court have Section declared tutional.11 The Commonwealth Court refused to Sec- declare 3(e) unconstitutional, provision tion but did find the inapplicable to it judges the Commonwealth deter- because mined law governmental that courts of are not bodies. We Court, rejected approach by taken the Commonwealth applied judges held the statute unconstitutional as to former regulation because the “infringed this Court’s exclusive power govern attorney....” Wajert, the conduct of an V, at 442 (citing A.2d Article
Constitution). P.J.S.,
In City City sought Solicitor of Erie declaratory prevent relief to from pursuing the Commission investigation into whether he violated the conflict of interest provisions of the Ethics Act representing City simultaneously Solicitor while representing public official de- fendants their individual capacities. The Solicitor City attempted contending circumvent the Ethics Act investigate the Commission could not his due to activities his However, status as an attorney. rejected argument, we this reasoning “[ajlthough Pennsylva- members of Bar of uniformly subject nia are professional and ethical imposed court, standards regulated by not, they are by virtue of that membership exempt all profes- other P.J.S., regulations.” sional and ethical 723 A.2d at Ac- Commission, cord Maunus v. State Ethics 518 Pa.
A.2d 1324 (attorney Liquor members Control *12 Board are from exempt not financial reporting the and disclo- requirements sure Act workplace regu- Ethics because lations can imposed be on employees who also to happen be body emmental year with which he has been associated for one after he body.”
leaves that Wajert Judge declaratory 11. We note judgment that filed a action in the appealing Opinion Commonwealth Court rather than the of the Com- time, however, mission. then-applicable At the the Ethics Act did not 1108(i) Act, provision a contain to similar Section the current provides appeal for an to if the Commonwealth Court the “adjudication.” decision the Commission constitutes P.J.S., In that exclusive “[t]he we concluded attorneys). when branch of infringed court is another jurisdiction this attorneys attempts regulate to the conduct However, merely attorneys. the of their status as because a infringed regulation court not when jurisdiction of this applied to all and some those persons, at conduct is aimed P.J.S., at attorneys.” be 723 A.2d persons happen to in position to taken Commission Contrary P.J.S. case, in in indicates that nothing our decision present Wajert. upon P.J.S. see no reason overrule We we relied after P.J.S. In good why Wajert would not remained law have P.J.S., public employee in who attorney question was sought protection of this Court’s exclusive to invoke attorneys. City The over the conduct of Solicitor jurisdiction gener- exempt should be from P.J.S. argued in government employees ally ethical rules current applicable contrast, Assembly. the issue the General In promulgated matter, Wajert, like issue in the instant related longer employee. attorney was no conduct of an who Wajert their simply have asserted judge and the Court, their from right, prohibition this absent Wajert P.J.S. reveals connection profession. The between authority the conduct of exclusive over that this Court retains case employer, but that an attorneys generally, can of its government, proscribe conduct cur- Commonwealth pro- attorneys, provided that employees, including rent attorneys. scription targeted specifically is not at principle with this 1103(g) of Ethics Act conflicts respects. First, purports regulate it significant in two former As the Commonwealth Court employees. conduct of notes, in P.J.S. we present cogently in the case relied majority Maunus, Wajert. on Maunus and did In even mention explained suggest employers it is we “ludicrous pro- constitutionally precluded imposing ethical and are employees, or all of requirements on their some fessional Maunus, at attorneys.” 544 A.2d 1326. How- may whom Maunus, Wajert ever, indicating refused to overrule we that Maunus —P.J.S. line presumes existence cases
695 Wajert. Accordingly, government of as former concerns em- Wajert Commonwealth, law ployees, remains the limit- of P.J.S. regulation ing application of conduct of government employees. then-current Second, prohibitions 1103(g) in Section of the contained they specifically Ethics Act are unconstitutional tar because attorneys. get prevent provision The seeks a former government employee representing any person before government employer year his or her for one after the termi relationship. nation employment of their Ethics Act The “represent” any person defines act on “[t]o behalf other includes, in any activity to, but not limited personal following: appearances, negotiations, lobbying and submitting bid or proposals signed by contract which are or contain public the name of a former or employ official ee.” 65 Pa.C.S. 1102. While it is conceivable that non- attorney engage and, could in such “representation” therefore, 1103(g) strictly Section is not scope attorneys, limited in it Gmerek v. State targets nonetheless of law. Cf. Commission, 569 Pa. A.2d 825 J., Reversal) (the (Saylor, Opinion Support Lobbying Act Disclosure is not unconstitutional because it does not control appearances judicial tribunals before and does not estop persons from appearing agencies officers before sitting quasi-judicial in a capacity).
Accordingly, we 1103(g) find Section the Ethics Act unconstitutional, V, violative Section Article Constitution, Pennsylvania extent applies government to former employees who are also attor- do neys. question policy We underpinning Section 1103(g). recognize We the sound for prohibiting rationale former employee person, from “representing] promised compensation, any actual matter before governmental body with which has been he associated for year one after he body.” leaves 1103(g). Pa.C.S. However, legislature body state is not vested with the power restriction; to enact such a authority lies with this Rules through promulgation
Professional Conduct.
CONCLUSION discussion, we affirm the foregoing In accordance with 1103(g) of of the Commonwealth Court. Section Order regulates that it is unconstitutional to the extent Ethics Act employees who are also of former the conduct attorneys. join and CASTILLE CAPPY Justice
Chief Justice full. majority opinion in joins concurring opinion, LAMB in which he files
Justice opinion. majority Section II of concurring dissenting and opinion, EAKIN files Justice I joins majority opinion. Section of the which he dissenting opinion, joined by Justice files Justice SAYLOR NIGRO. concurring. LAMB
Justice majority opinion, I II of the denominated join Section “Constitutionality”, principal substan- the discussion I and agree tive here raised issue (Act) it Act1 is unconstitutional to the extent who former purports regulate the conduct are however, separately, I to ex- government employees. write with the discussion in the Section I of press disagreement do “Standing”, having and majority opinion, denominated appealability of the Commission’s advices with the issue issued, were, authority invest- pursuant these advices as 1107(10)-1107(11), §§ by Pa.C.S. ed in the Commission persons who request written advice on opinions issue Act. an permit I would inquire as to their duties under not, they or as are appeal opinions from such written advices view, in the “adjudication” as term defined my They 101. are § Law. Agency Administrative See Pa.C.S. 93, 15, 1998, 1103(g). P.L. No. 65 Pa.C.S. of October Act order, decree, decision, not a final ruling determination Commission, properly categorized, but are in the terms of Act, opinions and written advice. Nevertheless, I ground impor- would not on that avoid the tant Judge McGinley substantive issue As before us. noted in below, concurring dissenting from the decision Katherine Shaulis had declaratory judgment available to her an action in brought in original the Commonwealth jurisdiction Court’s judicial which to obtain review the Commission’s advice.2 Equally, Judge McGinley emphasized, also the Common- possessed wealth Court was authority Rule of Appellate “regard upon” Procedure 15043to act petition for review Ms. if it filed Shaulis as were a complaint declaratory judgment. these Under circum- stances, a remand to while the Commonwealth *15 purpose exercising of its authority under Pa.R.A.P. 1504 would be procedurally appropriate, accomplish such action would only delay additional before the eventual return of the identi- cal Therefore, issue to this Court for resolution. deciding interest of important possible this all issue with dispatch, I would treat having the matter as been decided 1504, below Pa.R.A.P. thereby of reaching the issue validity 1103(g) of Section of Act necessity without categorizing opinions the Commission’s and written advices as appealable adjudications.
Justice EAKIN concurring dissenting. and I agree opinion final, that the of the Ethics Commission is giving Ms. standing appeal, to and I join ground 2. On I agree suggestion this cannot majority with the in the opinion only that the alternative actions available to Shaulis were Ms. appeal “jeopardize ... rating, ethical [her] her admission to Commonwealth, law reputation legal in the and her in the community.” Majority slip op. (quoting at 12 State Shaulis v. Ethics Comm'n, 1091, (Pa.Cmwlth.1999)). 739 A.2d 1100 § Pa.R.A.P. as well provide 1504 as 42 Pa.C.S. 5103 that where a review, party appeal by petition commences of a means was case, proper done in and this mode of relief is an action in dismissed, declaratory judgment, then the shall case but be shall regarded upon instead be and complaint declaratory acted as a judgment. Eth- However, I conclude majority opinion. respectfully applied Act to her ics is constitutional dissent from Section II. with the has this Court
Pennsylvania’s Constitution
vested
V
practice of law. Article
responsibility
supervising
govern-
prescribe general
“the
rules
gives
power
this Court
” Pa.
of all courts....
practice, procedure and the conduct
ing
Const,
10(c).
V,
has guarded
While this Court
art.
Assembly on
the encroachment
the General
power from
occasions,
rejected
also
calls for unrealistic
it has
numerous
general applicability.
micromanagement
provisions
over
Commission,
Pa.
723 A.2d
v. State Ethics
See P.J.S.
Commission,
v.
Ethics
(1999);
Pa.
Maunus
State
(1988).
This echoed sentiment Act, said, “[ajlthough in which this Court dation of the subject uniformly Bar of are members of the imposed regulated professional and ethical standards not, membership [C]ourt, they by this are virtue regulations.” other and ethical exempt professional from all P.J.S., upheld has Additionally, principled this Court at 178. to be also workplace regulations persons happened on who Maunus, stating: in this However, notwithstanding authority our substantial area, constitu- suggest employers ludicrous to be it is imposing professional ethical tionally precluded from may all of requirements employees, some or who their true is attorneys. equally employer This where *16 ... who lawyer or of its subdivisions a Commonwealth one any other employer his or her an like contracts services employ- of that subject to the terms and rules employee ment, way they are in no inimical provided that prescribed.by this Court. ethical standards Maunus, at 1326. accepted employment
Ms. Commonwealth Act,1 knowledge and it would with full knew hired, place was The of the Ethics Act in when Ms. Shaulis 1. version 403(e), 1103(g), phrase except § § was to 65 Pa.C.S. P.S. identical prohibit her from representing Department others before the year for a employment. ignorance after she left Her presumed; law cannot be weighed she must have the benefits obligations accepting before position. her Given preserving interest of integrity and neutrality of that tribunal, very this is a protection, reasonable ethical to which she subscribed took employment. when she majority §
The
finds
was
wholly
directed
at law-
yers, and therefore fails
Wajert
v. State Ethics Com-
mission,
(1980);
491 Pa.
The Act all employees former from representa- tion, regardless profession, of their “represent” defines “to act on behalf of any person any other activity which includes, to, but is not limited following: personal appear- ances, negotiations, lobbying submitting bid or contract proposals....” 65 Pa.C.S. hardly One needs to be a lawyer to perform these functions. This is representation “governmental court; before a body,” not only one has walk into the seat of to see flocks of non-lawyers representing government. others before the The Board Revenue and Finance allows one to “appear his own behalf represented or be by person possessing requisite techni- education, cal training experience. or is no requirement There petitioner that a represented before the by Board attorney or certified accountant.” 61 Pa.Code 7.5(b)(2). Many professionals other represent clients before governmental the various boards and subject are to the Act’s restrictions. I cannot find this is an Act lawyers. directed at
In an Act that does not lawyers, mention majority effectively “except lawyers” law; inserts hence, into all others, engineers accountants to lobbyists, must abide restriction, this ethical but lawyers need not. It is ironic finding targets the Act lawyers, the majority’s result is compensation” “with or without replaced by promised was “with compensation.”
actual *17 700 except lawyers. statutory prohibition everyone that binds I
Accordingly, must dissent.
dissenting.
SAYLOR
Justice
majority
the conclusion of the
respectfully disagree
I
1107(10)
advisory opinion
pursuant
issued
to Section
of
that an
subject
appeal,
Act is a
as well as
opinion”
Ethics
“final
unconstitutional as
that Section
its determination
employees
attorneys.
who are
applied
to former
in
1108 of
respect
appealability,
Section
the Ethics
With
commission,”
Legislature
Act,
“Investigations by
entitled
appeals
opinions
for
and orders “which be-
provided
provisions
chapter.”
of this
final
accordance with the
come[ ]
1108(i).
1108 contains the Ethics Act’s
65 Pa.C.S.
Section
appealability;
pertaining
Section
prescription
sole
for
case,
at issue
has no
advisory opinions
present
such are
Moreover,
only designation
corollary provision.
the statute’s
1108
finality
appears
expressly
also
Section
attaches
arising
investigations, which com-
to orders
from Commission
complaint
upon
filing
or
Commission
mence
motion, may proceed through preliminary inquiry and investi-
and,
findings report
request-
in a
where
gation, and culminate
1108(f) (delineat-
ed,
evidentiary hearing.
See 65
Pa.C.S.
required
final an
to be
the Commission
ing as
order
issued
n within
days
investigative
thirty
receipt
hearing
report,
hearing
response
findings
where a
has
record
occurred). Conversely,
provision
no
statute desig-
1107(10)
advisory opinions
as final
nates
issued
subject
judiciary.
to appellate review the
and/or
framework,
I would
light
In
honor the definitional
finality
contained within
specifications
appealability
Act.
Cheyenne-Arapaho Gaming
Accord
Comm’n
Comm’n,
Gaming
F.Supp.2d
v. National
Indian
(N.D.Okla.2002) (holding
specification
that Congress’
agency
enabling legislation
character of final
actions in
corollary proposition
“that the
supported
implied
other
final,
ergo,
(citing
actions are not
not reviewable.”
agency
Reich,
200, 208, 114
Basin
v.
Thunder
Coal Co.
U.S.
S.Ct.
(1994))).
771, 777,
course,
In present the Commission any did not initiate investigative, form of prosecutorial, proceed- or enforcement ing Appellee merely requested and received Commis- — sion’s concerning provisions view of its enabling legislation. notes, As the Commission when this occurs under Section 1107(10) Act, designed the Ethics merely effect is afford certain defenses to a requestor truthfully who submits faith, the material facts and good who in follows the advice given. 1107(10); § See 65 Pa.C.S. Suehr v. State Ethics Comm’n, 648, (Pa.Cmwlth.1994). 651 A.2d 649 note, I also accordance with the dissenting opinions Judges Leadbetter McGinley, requestor such circumstances is not entirely remedy. without See Shaulis v. Pennsylvania State Comm’n, 1091, (Pa.Cmwlth. Ethics 739 A.2d 1108-09 & n. 2 1999) (Leadbetter, J., dissenting) (citing Declaratory Judg- Act, 7532-7541); Shaulis, §§ ments 42 Pa.C.S. 739 A.2d at case, 1. example, upon any This would suggestion for that the Legislature right appeal did intend for a to attach to the imposition Act, penalties of criminal under Section 1109 Ethics 1109, monetary 65 Pa.C.S. damages the award of 1110, Pa.C.S. Pa. J., dissenting) (citing (McGinley, concurring 1106-07 1504). Indeed, I that the best course for believe R.A.P. petition of a upon receipt Commonwealth Court take circumstances, Judge McGinley suggests, in these review 1504, treat apply Procedure Appellate would be to Rule jurisdiction declaratory judg- as a original its matter id. proceeding. ment See merits, expressed the view that the previously
On I have Assembly respect Court should defer General legal may such as be conduct- regulation incidental government. Gmerek v. State ed in other branches See Comm’n, 602-04, A.2d 826-27 Pa. reversal).2 Moreover, J., support (Saylor, opinion here, give Legislature’s explanation I would credence to the is not one-year, post-employment limitation intended its *19 such, rather, to practice prevent to of law as but regulate the impropriety, there- pernicious practices appearance and the by assuring by government strengthening public confidence impartiality honesty public of its its of the constituents Comm’n, 75 Accord Forti v. New York State Ethics officials.3 876, 596, 235, 555 N.Y.S.2d 554 N.E.2d 885 N.Y.2d revolving “is (explaining that York’s door law not direct- New but at all at admitted rather aimed specifically ed Appellee’s disagree majority's I status as 2. also with the assessment (as opposed present) employee control to should determin- former 1103(g), ing constitutionality that this of Section establishes reasoning may basis on which the Court’s from the PJ.S. case material determining distinguished. Majority Opinion, at When be See functions, regulation intrudes on the Court’s core I believe whether a employment identity inquiry not turn status or that the should on rather, regulation, entity prescribing the but on the character including scope applicability. See regulation, of its substance of J., 6, Gmerek, (Saylor, opinion 825 Pa. 599 n. 807 A.2d at n. 6 569 at reversal). Wajert I do find Court’s decision in v. State support of Comm’n, 255, (1980), fairly 439 be distin- Pa. 420 A.2d to 491 regulation legal guishable, as the circumstances involved 262, 442, judiciary, which closer id. at 420 A.2d at is far before the see authority regulation than in the adminis- to the core area of this Court's arena. trative 4, 883, 1101.1(a); 1978, § Act of October P.L. 3. See 65 Pa.C.S. see also 1, 170, 403(e) (reenacted by § Act of § 65 P.S. and amended No. 9, 1989, 26, 1, 26, 403(g)) (repealed by § § No. 65 P.S. June P.L. 729, 93, 1, 15, 1998, 1103(g)). Act P.L. No. 65 Pa.C.S of October on employees[;] prac- executive branch effect [i]ts former incidental”). is, thus, merely regard law tice of With argument already Court has the mischief addressed 1103(g), applied attorneys, by remedied promulgating Responsibility, 1.11 of I Rule Professional would revolving regard follow the view of other courts would rules, legislation supplemental door such and not as See, Ethics, conflicting. State on Howard v. Comm’n e.g., (“The 37, 39 (Fla.Dist.Ct.App.1982) [revolving So.2d door] legislature supplement statutes merely enacted Responsibility adopted by Supreme Canons Professional attorney Court. When an decides to accept employ- ment, subject legislative he does so proscription on his conduct.”); accord PUC Bar Ass’n v. Thorn- 589, 593, (1982) (Hutchinson, 498 Pa. burgh, A.2d order) J., (“There dissenting to per curiam is no apparent contradiction Responsibility between the Code Professional merely and the Ethics legislature Act. The has its exercised authority to enact stringent addressing a more rule the same rules], subject as declaring particular [the Court’s that a private employment specified within a period presents the appearance impropriety generally we A condemn. determi- employment nation such is offensive in appearance is unreasonable.”). manifestly acknowledge
I
the burden that the one-year, post-employ-
restriction places
ment
employees.
former
See
Forti,
generally
555 N.Y.S.2d
tive
Gmerek,
602-04,
A.2d at 826-
Pa. at
807
Accord
569
judiciary.
reversal).
I
J.,
would also
support
(Saylor,
opinion
insulating
from
position
that the Court’s
note
unfortunately, gives
ap-
rise
legislative proscriptions,
preferential treatment.
pearance of
Thus,
the order
the Commonwealth
I would reverse
rationale
the line
Court,
supporting
disapprove
precedent
following Pennsylvania
of Commonwealth
88, 434 A.2d
62 Pa.Cmwlth.
Thornburgh,
Bar Ass’n v.
PUC
curiam,
(1982).
(1981),
Pa.
450 A.2d
per
aff'd
opinion.
dissenting
this
joins
Justice NIGRO
AND parties GRANTED. The appeal for allowance of petition following questions: directed address are 1) creating excep- a new Superior Court erred Whether employment to the at-will doctrine.
tion