PA Supreme Court Weighs in on Post- Employment Restrictions Finding Restrictions Apply Equally to Attorneys

In Yocum v. Commonwealth, an attorney working for the Pennsylvania Gaming Control Board (“the Board”) challenged, as unconstitutional, certain temporal employment restrictions imposed upon attorneys by the Board.

The Board’s restrictions stated that any employee of the Board was restricted for a period of two years after termination of employment with the Board from: (1) accepting employment with a licensed gaming facility; (2) accepting employment with an applicant, licensed entity, affiliate, intermediary, subsidiary, or holding company; or (3) appearing before the Board for a hearing or proceeding representing any of the aforementioned entities.

The Board attorney asserted that she wished to seek employment as an attorney representing gaming clients and that the Board’s employment restrictions placed an unconstitutional restriction on her ability to practice law.

Had the Board’s employment restrictions only applied to attorneys, the Pennsylvania Supreme Court would have declared the restriction unconstitutional.  However, since the restriction applied to all Board employees, the Pennsylvania Supreme Court found the employment restriction constitutional.

Instead, the Court expressed its support for the sound public policy considerations underlying the Board’s restrictions on future employment, which include preventing conflicts of interest, or the appearance of conflicts, in a historically controversial industry, by restricting current Board employees from using their contacts and insider expertise as a springboard to other employment opportunities within the gaming industry for a certain period of time.

In other words, the Court found it reasonable for the state legislature to place restrictions on the gaming industry aimed at preventing corruption and ensuring public confidence. The court noted that such restrictions are not novel and can be found in other industries where employees are privy to information and knowledge which could lead to the appearance of a conflict of interest in their field of post-employment.

 

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