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Home My WebLink About11-510 O'Conner ADVICE OF COUNSEL March 4, 2011 James J. O’Connor, Esquire 496 North Main Street Archbald, PA 18403 11-510 Dear Mr. O’Connor: This responds to your letters dated January 20, 2011, and January 26, 2011, 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 a compensated employment position with the borough’s department of public works. Facts: As Solicitor for the Borough of Archbald (“Borough”), you have been authorized by Borough Council Member Randy Grandinetti (“Mr. Grandinetti”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. You state that Mr. Grandinetti is interested in resigning from his position on Borough Council to apply for a compensated employment position with the Borough Department of Public Works. You state that if Mr. Grandinetti would be hired for such position, he would not be acting on behalf of any other person, and that he would not be dealing with matters before the governmental body other than working for the governmental body as an employee with the Borough Department of Public Works. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. Grandinetti to resign from his position on Borough Council to apply for and--if selected as the most qualified applicant--accept a compensated employment position with the Borough Department of Public Works. 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. O’Connor, 11-510 March 4, 2011 Page 2 As a Borough Council Member, Mr. Grandinetti is 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. Grandinetti would become 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. "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. O’Connor, 11-510 March 4, 2011 Page 3 The governmental body with which Mr. Grandinetti would be deemed to have been associated upon termination of service as a Borough Council Member would be Borough Council in its entirety. Therefore, upon termination of Mr. Grandinetti’s service on Borough Council, Section 1103(g) of the Ethics Act would become applicable to him and would 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. Grandinetti from resigning from his position on Borough Council to apply for and--if selected--accept a compensated employment position with the Borough Department of Public Works. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office or employment, or confidential information received by being in the public position, for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, this Advice is limited to addressing the specific question posed under Section 1103(g) of 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. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member of Council for the Borough of Archbald (“Borough”), Randy Grandinetti (“Mr. Grandinetti”) 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. The governmental body with which Mr. Grandinetti would be deemed to have been associated upon termination of service as a Borough Council Member would be Borough Council in its entirety. U pon termination of Mr. Grandinetti’s service on Borough Council, Section 1103(g) of the Ethics Act would become applicable to him and would restrict “representation” of “persons” before Borough Council. Based upon the submitted facts, Section 1103(g) of the Ethics Act would not prohibit Mr. Grandinetti from resigning from his position on Borough Council to apply for and--if selected--accept a compensated employment position with the Borough Department of Public Works. Lastly, the propriety of the proposed conduct has only been addressed under Section 1103(g) of 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 O’Connor, 11-510 March 4, 2011 Page 4 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