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HomeMy WebLinkAbout10-594 Cimini ADVICE OF COUNSEL July 8, 2010 Louis A. Cimini, Esquire Goffer & Cimini 1603 Monsey Avenue Scranton, PA 18509 10-594 Dear Mr. Cimini: This responds to your letters dated May 18, 2010, and May 24, 2010, 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a borough council member with regard to resigning from his position on borough council to pursue the position of borough manager. Facts: As Solicitor for Throop Borough (“Borough”), located in Lackawanna County, Pennsylvania, you have been authorized by Borough Council Member Ray Jarosh (“Mr. Jarosh”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Borough Manager notified Borough Council that she is retiring in July 2010. You state that Mr. Jarosh is interested in applying for the position of Borough Manager. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. Jarosh to resign from his position as a Borough Council Member to pursue the position of Borough Manager. 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 a Borough Council Member, Mr. Jarosh is a public official as that term is defined in the Ethics Act, and therefore he is subject to the provisions of the Ethics Act. Cimini, 10-594 July 8, 2010 Page 2 Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j)Voting conflict.-- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to Cimini, 10-594 July 8, 2010 Page 3 the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public official/public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office, including, but not limited to, discussing, conferring with others, and advocating for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. Section 1103(g) of the Ethics Act imposes post-termination restrictions upon former public officials/public employees: § 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 Cimini, 10-594 July 8, 2010 Page 4 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 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. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Section 1103(a) of the Ethics Act would prohibit Mr. Jarosh from using the authority of his current public position as a Borough Council Member or confidential information received by being a Borough Council Member to advance an opportunity of employment with the Borough. In his capacity as a Borough Council Member, Mr. Jarosh generally would have a conflict of interest in matters pertaining to the hiring of a Borough Manager given his intention to apply for said position. Such matters would include but would not be limited to determining the necessary qualifications for the position of Borough Manager, reviewing applications, or screening or interviewing applicants. In each instance of a conflict of interest, Mr. Jarosh would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Subject to the condition that there would be no use of authority of Mr. Jarosh’s position as a Borough Council Member or confidential information received by being in such position to advance the prospects of his obtaining employment as the Borough Manager, Section 1103(a) of the Ethics Act would not prohibit Mr. Jarosh from resigning his position as a Borough Council Member to pursue the position of Borough Manager. See, Binder Heath/Arnold, Advice 06-568; cf., Sipper, Order 1487. Upon resigning from his position as a Borough Council Member, Mr. Jarosh would become a “former public official” subject to the restrictions of Section 1103(g) of the Ethics Act. The governmental body with which Mr. Jarosh would be deemed to have been associated upon termination of service as a Borough Council Member would be the Borough Council in its entirety. Section 1103(g) of the Ethics Act would not prohibit Mr. Jarosh from submitting an application and pursuing employment as to the position of Borough Manager following his resignation from the position of Borough Council Member. See, Binder Heath/Arnold, supra. If Mr. Jarosh would be appointed as the Borough Manager, he would in that capacity be considered a public official/public employee subject to the Ethics Act, and the restrictions of Section 1103(g) of the Ethics Act would cease to apply to him. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member of Council for Throop Borough (“Borough”), located in Lackawanna County, Pennsylvania, Ray Jarosh (“Mr. Jarosh”) is a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) the Borough Manager Cimini, 10-594 July 8, 2010 Page 5 notified Borough Council that she is retiring in July 2010; and (2) Mr. Jarosh is interested in applying for the position of Borough Manager, you are advised as follows. Section 1103(a) of the Ethics Act would prohibit Mr. Jarosh from using the authority of his current public position as a Borough Council Member or confidential information received by being a Borough Council Member to advance an opportunity of employment with the Borough. In his capacity as a Borough Council Member, Mr. Jarosh generally would have a conflict of interest in matters pertaining to the hiring of a Borough Manager given his intention to apply for said position. In each instance of a conflict of interest, Mr. Jarosh would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Subject to the condition that there would be no use of authority of Mr. Jarosh’s position as a Borough Council Member or confidential information received by being in such position to advance the prospects of his obtaining employment as the Borough Manager, Section 1103(a) of the Ethics Act would not prohibit Mr. Jarosh from resigning his position as a Borough Council Member to pursue the position of Borough Manager. Upon resigning from his position as a Borough Council Member, Mr. Jarosh would become a “former public official” subject to the restrictions of Section 1103(g) of the Ethics Act. The governmental body with which Mr. Jarosh would be deemed to have been associated upon termination of service as a Borough Council Member would be the Borough Council in its entirety. Section 1103(g) of the Ethics Act would not prohibit Mr. Jarosh from submitting an application and pursuing employment as to the position of Borough Manager following his resignation from the position of Borough Council Member. If Mr. Jarosh would be appointed as the Borough Manager, he would in that capacity be considered a public official/public employee subject to the Ethics Act, and the restrictions of Section 1103(g) of the Ethics Act would cease to apply to him. 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 . 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