Loading...
HomeMy WebLinkAbout10-632 DeWitt ADVICE OF COUNSEL December 22, 2010 Myron B. DeWitt, Esquire DeWitt & Cordner 1220 Main Street, P.O. Box 244 Susquehanna, PA 18847 10-632 Dear Mr. DeWitt: This responds to your letters dated October 28, 2010, and November 3, 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 restrictions upon a former borough council member with regard to serving as the borough codes enforcement officer. Facts: As Solicitor for the Borough of Susquehanna Depot (“Borough”), you have been authorized by Borough Council to request an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. The Borough has advertised to fill a vacancy in the appointed position of Borough Codes Enforcement Officer. The Borough Codes Enforcement Officer has the following duties: fielding and investigating complaints of potential code violations; inspecting potential code violations; issuing appropriate citations or compliance orders when warranted; and appearing in court when necessary to enforce compliance orders and/or citations. You state that the Borough received an application for the position of Borough Codes Enforcement Officer from Roy Williams (“Mr. Williams”). Until approximately a few months ago, Mr. Williams served as a Member of Borough Council. You state that in his former capacity as a Borough Council Member, Mr. Williams was not involved in any way with the creation of the currently vacant Codes Enforcement Officer position. You further state that Mr. Williams, as a Borough Council Member, would have participated in the adoption of the past year’s budget, which would have included an allocation for the Codes Enforcement Department. The President of Borough Council has advised you that Mr. Williams did not participate in any decisions regarding any pending or outstanding code violations in his former capacity as a Borough Council Member. Before considering the potential appointment/hiring of Mr. Williams to the position of Borough Codes Enforcement Officer, Borough Council seeks an advisory as to whether Mr. William’s prior service as a Borough Council Member would preclude such an appointment. DeWitt, 10-632 December 22, 2010 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would impose any restrictions upon Mr. Williams with regard to serving as the Borough Codes Enforcement Officer. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In the former capacity as a Borough Council Member, Mr. Williams would be considered a “public official” subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Consequently, upon termination of service as a Borough Council Member, Mr. Williams became a “former public official” subject to Section 1103(g) of the Ethics Act. 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. DeWitt, 10-632 December 22, 2010 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 employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term “represent” is also broadly defined to prohibit acting on behalf of any person in any activity. The governmental body with which Mr. Williams is deemed to have been associated upon termination of service as a Borough Council Member is Borough Council in its entirety. Therefore, for the first year following termination of Mr. William’s service on Borough Council, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before Borough Council. However, per State Ethics Commission precedents, Section 1103(g) of the Ethics Act does not prohibit the appointment/rehiring of a former public official/public employee to a public office or position of public employment with the former governmental body. Confidential Opinion, 93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 and 97-010-R; McGlathery, Opinion 00-004. Therefore, you are advised as follows. Based upon the submitted facts, Section 1103(g) of the Ethics Act would not prohibit Mr. Williams from being appointed to serve as the Borough Codes Enforcement Officer. If Mr. Williams would be appointed to serve as the Borough Codes Enforcement Officer, 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; the applicability of any other statute, code, ordinance, regulation, or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: In the former capacity as a Member of Council for the Borough of Susquehanna Depot (“Borough”), Roy Williams (“Mr. Williams”) would be considered a “public official” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. U pon termination of service as a Borough Council Member, Mr. Williams became a “former public official” subject to Section 1103(g) of the Ethics Act. The governmental body with which Mr. Williams is deemed to have been associated upon termination of service as a Borough Council Member is Borough Council in its entirety. Section 1103(g) of the Ethics Act would prohibit Mr. Williams from engaging in any activity that would constitute prohibited representation before Borough Council for one year following termination of his service on Borough Council. Based upon the submitted facts, Section 1103(g) of the Ethics Act would not prohibit Mr. Williams from being appointed to serve as the Borough Codes Enforcement Officer. If Mr. Williams would be appointed to serve as the Borough Codes Enforcement Officer, 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. DeWitt, 10-632 December 22, 2010 Page 4 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