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Home My WebLink About08-564 BenderRobert C. Bender Interim Manager Township of New Britain 207 Park Avenue Chalfont, PA 18914 Dear Mr. Bender: ADVICE OF COUNSEL July 24, 2008 08 -564 This responds to your letter dated June 17, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any restrictions upon an individual employed as an interim manager for a township following termination of employment with said township. Facts: As the Interim Manager for New Britain Township ( "Township "), located in Bucks County, Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You served as the Township Manager from 1980 to 1998, at which time you resigned from said position to pursue employment in the private sector. Since July 2007, you have served in the temporary, full -time employment position of Interim Manager for the Township. You have submitted copies of your Temporary Employment Agreement with the Township and a portion of a Township Ordinance setting forth your duties, which documents are incorporated herein by reference. You anticipate leaving your full -time employment with the Township on or about August 1, 2008, to return to private sector employment in which you would offer consulting services in land planning matters to both public and private sector clients. You further state that you anticipate the possibility of continuing a temporary consulting relationship with the Township, primarily to assist in the transition to the new Township Manager and staff or to consult on other special projects as might be assigned to you by the Township Board of Supervisors. Based upon the above submitted facts, you ask the following questions: (1) Whether the Ethics Act would impose any restrictions upon you with regard to appearing before the Township Supervisors for other clients or matters for which you would not be compensated; Bender, 08 -564 July 24, 2008 Page 2 (2) Whether the Ethics Act would impose any restrictions upon you with regard to appearing before the Township Supervisors for other clients or matters for which you would be compensated; and When the one -year period of applicability of Section 1103(g) of the Ethics Act would begin if you would provide consulting services to the Township upon terminating employment with the Township. 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 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 the Interim Manager for New Britain Township, you would be considered a public official /public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; cf., McCleary, Order 1292; Confidential Opinion, 03 -001. Consequently, upon termination of employment with the Township, you would become a former public official /public employee subject to Section 1103(g) of the Ethics Act. (3) While Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before the governmental body with which he has been associated ": § 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. Bender, 08 -564 July 24, 2008 Page 3 "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. The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public official /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 /public 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 1103(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 /public 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 90 -006; Sharp, Opinion 90- 009 -R. Bender, 08 -564 July 24, 2008 Page 4 The governmental body with which you would be deemed to have been associated upon termination of employment with the Township would be the Township. Therefore, for the first year following termination of your employment with the Township, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Township. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. In response to your first and second specific inquiries, you are advised as follows. Section 1103(g) of the Ethics Act would preclude you from engaging in any activity that would constitute "representation" of a "person" before your former governmental body, including but not limited to making appearances before the Township Supervisors on behalf of clients, where such representation would involve promised or actual compensation. By its own terms, Section 1103(g) of the Ethics Act only applies when the representation is with promised or actual compensation. Confidential Opinion, 07 -012. In response to your third specific inquiry, as noted above, you would become a former public official /public employee subject to the restrictions of Section 1103(g) of the Ethics Act upon termination of your employment as Interim Manager for the Township. During the first year following termination of your employment in the aforesaid position, Section 1103(g) of the Ethics Act would prohibit you from providing consulting services to the Township for promised or actual compensation. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As the Interim Manager for New Britain Township ( "Township "), located in Bucks County, Pennsylvania, you would be considered a public official /public employee subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq. Upon termination of employment as Interim Manager for the Township, you would become a former public official /public employee subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of employment with the Township would be the Township. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would preclude you from engaging in any activity that would constitute "representation" of a "person" before your former governmental body, including but not limited to making appearances before the Township Supervisors on behalf of clients, where such representation would involve promised or actual compensation. During the first year following termination of your employment as the Interim Manager for the Township, Section 1103(g) of the Ethics Act would prohibit you from providing consulting services to the Township for promised or actual compensation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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. Bender, 08 -564 July 24, 2008 Page 5 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, Robin M. Hittie Chief Counsel