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