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HomeMy WebLinkAbout13-524 Schrempf ADVICE OF COUNSEL April 25, 2013 Amy R. Schrempf, Esquire Thomas Shannon Barry & Associates 1103 East Carson Street Pittsburgh, PA 15203 13-524 Dear Ms. Schrempf: This responds to your letters dated February 25, 2013, and March 6, 2013, by which you requested an advisory from the State Ethics Commission. Issue: Whether, pursuant to Section 1103(g) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(g), the former Chairman of the Board of the Elizabeth Township Sanitary Authority (“Authority”) would be prohibited from acting as a compensated consultant to the Authority during the first year following termination of his service on the Authority Board. Facts: You have been authorized by former Authority Chairman Robert W. Similo (“Mr. Similo”) to request an advisory from the State Ethics Commission on his behalf. You have submitted the following facts. You state that Mr. Similo served as Authority Chairman for more than ten years. Mr. Similo’s most recent term as an Authority Board Member ended on December 31, 2012, at which time Mr. Similo was not reappointed to serve on the Authority Board. You state that the Authority would like to hire Mr. Similo as a consultant to the Authority to assist the new Authority Chairman with certain on-going projects in which Mr. Similo was previously directly involved. You have submitted a copy of a proposed agreement, styled “Project Consultant Independent Contractor Agreement” (“Agreement”), by which the Authority would contract for Mr. Similo’s services as a consultant, together with a description of Mr. Similo’s proposed duties as a consultant. Per the Agreement, the parties to the Agreement would be the Authority and a corporation named “S&S Scientific,” which is located at Mr. Similo’s address. The consulting services would be performed as an independent contractor for a fee of $75.00 per hour plus expenses. The term of the Agreement would overlap the first year following Mr. Similo’s termination of service on the Authority Board. Per the submitted description of Mr. Similo’s proposed duties as a consultant to the Authority, Mr. Similo would: (1) act as a liaison between the Authority Board and the key stakeholders of the Authority’s projects; (2) coordinate and attend meetings with respect to the assigned projects; (3) disseminate information to the Authority Board; (4) Schrempf-Similo, 13-524 April 25, 2013 Page 2 lend expertise in the field of sanitary sewage treatment; (5) prepare reports and recommendations as required; (6) assist with cost-benefit analyses for projects; (7) attend informational seminars to advise the Authority Board on current technology trends that might affect projects; and (8) perform other duties at the discretion of the Authority Board Chairman. Based upon the above, you request an advisory as to whether the Ethics Act would prohibit Mr. Similo from acting as a consultant to 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. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. In the former capacity as a Member and Chairman of the Authority Board, Mr. Similo 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 an Authority Board Member, Mr. Similo became a “former public official” subject to Section 1103(g) of the Ethics Act. Section 1103(g) restricts 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 Schrempf-Similo, 13-524 April 25, 2013 Page 3 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 official/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. 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. Listing one’s name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official/public employee on invoices submitted by his new employer to the former governmental body, even if the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing contract does not involve the unit where a former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95-011. A former public official/public employee may assist in the preparation of any documents presented to his former governmental body. However, the former public official/public employee may not be identified on documents submitted to the former governmental body. The former public official/public employee may also counsel any person regarding that person’s appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Section 1103(g) only restricts the former public official/public employee with regard to representation before his former governmental body. The former public official/ Schrempf-Similo, 13-524 April 25, 2013 Page 4 public employee is not restricted as to representation before other agencies or entities. However, the “governmental body with which a public official/public employee is or has been associated” is not limited to the particular subdivision of the agency or other governmental body where the public official/public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, Opinion 90-009-R. The governmental body with which Mr. Similo has been associated upon termination of service as an Authority Board Member is the Authority in its entirety. Therefore, for the first year following termination of service on the Authority Board, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before the Authority. You are advised that during the first year following termination of Mr. Similo’s service as an Authority Board Member, Section 1103(g) of the Ethics Act would prohibit Mr. Similo from entering into a consulting contract with the Authority--including but not limited to the proposed Agreement--and/or providing consultant services to the Authority with promised or actual compensation, as such activities would constitute prohibited “representation” of “persons” before the Authority. Cf., Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005; Nanovic, Advice 10-567. 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, 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. Specifically not addressed herein is the applicability of the Municipality Authorities Act. Conclusion: In the former capacity as a Member and Chairman of the Elizabeth Township Sanitary Authority (“Authority”) Board, Robert W. Similo (“Mr. Similo”) 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. Upon termination of service as a Member of the Authority Board, Mr. Similo became a “former public official” subject to Section 1103(g) of the Ethics Act. The former governmental body is the Authority in its entirety. The restrictions as to representation outlined above must be followed. During the first year following termination of Mr. Similo’s service as an Authority Board Member, Section 1103(g) of the Ethics Act would prohibit Mr. Similo from entering into a consulting contract with the Authority and/or providing consultant services to the Authority with promised or actual compensation. 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 Schrempf-Similo, 13-524 April 25, 2013 Page 5 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