Pennsylvania's 17-month-old Medical Marijuana Act prohibits elected and appointed public officials from having a financial stake in the burgeoning industry or working directly or indirectly for a cannabis company while serving in state government.
Yet that did not prevent state Sen. Daylin Leach — one of the Legislature's biggest medical marijuana backers — from moonlighting as a medical marijuana attorney.
Within weeks of Gov. Wolf signing the bill into law on April 17, 2016, Leach was hired by the Philadelphia law firm Sacks Weston Diamond, which lobbies on behalf of the industry and represents at least one client that later won a multimillion dollar Health Department license to operate a marijuana growing and processing facility.
The Pennsylvania Ethics Commission gave Leach, a Montgomery County Democrat, a green light — albeit with caution signals — regarding his work at the firm.
At the firm, Leach offered clients advice on medical marijuana licensing, permitting and regulatory rules, according to the commission's advisory opinion, while continuing "to play an unofficial role in the development of the commonwealth's policies and regulations regarding medical marijuana" as an elected senator.
In approving the moonlighting, the commission's chief legal counsel, Robin M. Hittie, warned that Leach's side job could pose a conflict of interest if he "consciously" used his Senate position, the "authority of his office" or confidential information gleaned from it for a "private pecuniary benefit" for himself or his family.
Hittie also made clear the commission ruling covered only the Ethics Act, not any other state laws. Leach quit the law firm in July, when he announced his candidacy for a suburban Philadelphia congressional seat.
Andrew Sacks, the firm's managing partner and head of its Cannabis and Hemp Department, said lawmakers who are lawyers often work in "of counsel" positions at law firms. Given Leach's background, Sacks said, it was a perfect match for him to work at a firm that specializes in medical marijuana.
As the state Ethics advisory shows, Sacks added, the firm and Leach made sure legal and state ethics cannons were followed. Leach never set up meetings; he only attended meetings when asked, Sacks said. Leach never worked on clients' applications, Sacks said, and that includes Ilera Healthcare, a client that was awarded a growing/processing permit in June.
"There is no reason why he could not join the firm ethically, morally or any other way," Sacks said.
Leach said he cleared the job through the proper ethics channels: the Senate Democratic Caucus and the Ethics Commission. The caucus requested the ethics ruling on his behalf.
In it, the caucus asked: Could Leach meet with the firm's medical marijuana clients and help draft licensing applications? Could he answer regulatory questions before and after the Health Department awarded licenses? And could he lobby the department on behalf of an unidentified client?
Most of those scenarios never occurred, Leach said. He said he never advised medical marijuana clients.
"Once the governor signed my bill [into law], I had no more power at all," he said. "I had no say in who got licenses. I was not asked for my opinion and I did not offer my opinion. Frankly, I was largely agnostic in that. I never weighed in on anyone with the Department of Health. I made no effort to tilt the scales on behalf of anyone or against anyone. Nor did I have the power to do so."
Leach's side job did not sit well with two opponents of more lenient state drug laws.
Full-time legislators should not be working part-time jobs and Leach's law firm job "stinks," said Diane Berlin, a longtime antidrug and gambling advocate. "It calls into question and has the appearance of something that is not ethical to do."
Former state Rep. Paul Clymer (R., Bucks) also dislikes Leach's dual roles. Clymer opposed relaxing the state's marijuana and gambling laws, and was seen by colleagues as one of the most ethical lawmakers during his 1981-2014 career.
"The problem is the appearance of stepping over the line, the boundary on an issue as highly sensitive as this is," Clymer said.
"I wish to make it clear that I have no problem with you seeking relief from the courts if your client feels they have been wronged," Leach wrote in the letter his staff shared with media. "I am, and always have been, completely agnostic regarding who the Department of Health awards licenses to. My only interest is in the best applicants prevailing, whoever they may be. Beyond that, I have had no preference on the outcome."
The letter had nothing to do with his prior employer and he did not consult them before sending it, Leach said. If a judge were to halt the entire law as the Bethlehem firm wants, he said, it would mean children would not be able to get their medicine even under a safe harbor provision that says families will not be prosecuted for bringing out-of-state medical marijuana into Pennsylvania until the operation is fully running.
"If the plaintiffs get the relief they are seeking, the whole program could be shut down … and that takes medicine out of the mouth of very sick kids, which I don't know how anyone with a conscious could do," Leach said.
Keystone Releaf's lawyer Seth Tipton declined to comment on the letter.
Seth Weber, a criminal justice professor at DeSales University and a former federal prosecutor, saw nothing wrong with Leach sending the letter because he did so after quitting the law firm.
The Medical Marijuana Act's restrictions on public officials working directly or indirectly for the industry while in office follow the tenants of the state's 1978 Ethics Act and 2004 Gaming Act, which legalized casinos. Those three laws explain how public officials cannot use their office or power for personal gain under penalty of a fine and/or prison. Three laws say a public official cannot lobby their former employer for at least one year after leaving office under penalty.
Leach's 2016 financial disclosure statement, filed April 28, 2017, lists him as an "employee" of the law firm. Pennsylvania does not require its state officials to list how much money they earned or how many hours they worked on side jobs.
Sacks Weston Diamond's website shows Leach was hired on May 2, 2016.
Between Feb. 20 and March 20, the Health Department received 457 applications for growing/processing and dispensing businesses.
On June 20, the department announced Ilera, one of Sacks Weston Diamond's clients, was among a dozen growing/processing permit winners. Twenty-five dispensary winners were announced nine days later.
It is impossible for the public to see the full details of any application. The companies and Health Department blacked key parts of each application, setting up various legal battles filed by media companies and competitors seeking the records under the Right to Know Act. Keystone Leaf and a Luzerne County applicant, BrightStar BioMedics, filed separate lawsuits in Commonwealth Court asking to overturn the results.