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HomeMy WebLinkAbout12-581 Confidential ADVICE OF COUNSEL December 20, 2012 12-581 This responds to your letter of November 2, 2012, by which you requested a confidential 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 member and [officer] of the board of a [type of authority] with regard to resigning from his position on said board to accept a compensated, part-time position as a [type of position] for said [type of authority]. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. Approximately [number of years] ago, you were appointed as a Member of the Board of a [type of authority] (the “Authority”). Approximately [number of years] ago, you were elected as [officer] of the Authority. You state that approximately [number of years] ago, your full-time position involving [type of position] with an A was eliminated, and that you accepted retirement. You started a B that does the same kind of work you were doing for the A but for a broader base of clients. The Authority is in need of a paid C on a part-time basis. The Authority Board has proposed that you resign from the Authority Board and take on the position of C for the Authority. You state that the C position would not have a vote on the Authority Board but would be responsible for most of the [type of activities] of the Authority Board, which would include, for the most part, [performing certain functions]. The C position would report directly to the Authority Board. It has been proposed that the C for the Authority would be paid on a consulting basis instead of a payroll basis at approximately [dollar amount] per hour, for approximately [number of hours] per week. You state that the specific wage has not been discussed at this time and was turned over to the Authority Board to discuss in your absence. Confidential Advice, 12-581 December 20, 2012 Page 2 Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would permit you to resign from your position as a Member and [officer] of the Authority Board to accept a position as a C for the Authority. 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. As a Member and [officer] of the Authority Board, you are a public official as that term is defined in the Ethics Act, and therefore you are subject to the provisions of the Ethics Act. 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). Confidential Advice, 12-581 December 20, 2012 Page 3 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 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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 1103(g) of the Ethics Act imposes 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). Generally, a former “public official” or former “public employee” may not contract with his former governmental body during the first year following termination of public Confidential Advice, 12-581 December 20, 2012 Page 4 service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005. You are advised that if you would resign from your current position as a Member of the Authority Board, then during the first year following such resignation, Section 1103(g) of the Ethics Act would prohibit you from serving as a C for the Authority as an independent contractor. See, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005. However, Section 1103(g) of the Ethics Act would not prohibit you from accepting an employmentposition as a C for the Authority. Cf., Confidential Opinion, 93-005; Long, Opinions 97-010 and 97-010-R; McGlathery, Opinion 00-004. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your current public position as a Member/[officer] of the Authority Board or confidential information received by being a Member/[officer] of the Authority Board to advance an opportunity of obtaining a compensated position with the Authority. To the extent that you would be an applicant for the position of C for the Authority, you generally would have a conflict of interest in your capacity as a Member and [officer] of the Authority Board in any and all matters pertaining to the hiring or appointment of a C for the Authority, including but not limited to determining the necessary qualifications for said position, reviewing applications, or screening or interviewing applicants. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Subject to the condition that there would be no use of authority of your position as a Member/[officer] of the Authority Board or confidential information received by being in such position to advance the prospects of your obtaining a position as a C for the Authority, Section 1103(a) of the Ethics Act would not prohibit you from resigning from your position as a Member and [officer] of the Authority Board to accept a position as a C for the Authority. Cf., Sipper, Order 1487. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the D. Conclusion: As a Member and [officer] of the Board of a [type of authority] (the “Authority”), you are 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) approximately [number of years] ago, your full-time position involving [type of position] with an A was eliminated, and you accepted retirement; (2) you started a B that does the same kind of work you were doing for the A but for a broader base of clients; (3) the Authority is in need of a paid C on a part-time basis; (4) the Authority Board has proposed that you resign from the Authority Board and take on the position of C for the Authority; (5) the C position would not have a vote on the Authority Board but would be responsible for most of the [type of activities] of the Authority Board, which would include, for the most part, [performing certain functions]; (6) the C position would report directly to the Authority Board; (7) it has been proposed that the C for the Authority would be paid on a consulting basis instead of a payroll basis at approximately [dollar amount] per hour, for approximately [number of hours] per week; and (8) the specific wage has not been discussed at this time and was turned over to the Authority Board to discuss in your absence, you are advised as follows. If you would resign from your current position as a Member of the Authority Board, then during the first year following such resignation, Section 1103(g) of the Ethics Act would prohibit you from serving as a C for the Authority as an independent Confidential Advice, 12-581 December 20, 2012 Page 5 contractor. However, Section 1103(g) of the Ethics Act would not prohibit you from accepting an employmentposition as a C for the Authority. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your current public position as a Member/[officer] of the Authority Board or confidential information received by being a Member/[officer] of the Authority Board to advance an opportunity of obtaining a compensated position with the Authority. To the extent that you would be an applicant for the position of C for the Authority, you generally would have a conflict of interest in your capacity as a Member and [officer] of the Authority Board in any and all matters pertaining to the hiring or appointment of a C for the Authority, including but not limited to determining the necessary qualifications for said position, reviewing applications, or screening or interviewing applicants. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Subject to the condition that there would be no use of authority of your position as a Member/[officer] of the Authority Board or confidential information received by being in such position to advance the prospects of your obtaining a position as a C for the Authority, Section 1103(a) of the Ethics Act would not prohibit you from resigning from your position as a Member and [officer] of the Authority Board to accept a position as a C for the Authority. 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