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HomeMy WebLinkAbout13-004 Schrempf OPINION OF THE COMMISSION Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Kathryn Streeter Lewis DATE DECIDED: 7/10/13 DATE MAILED: 7/18/13 13-004 Amy R. Schrempf, Esquire Thomas Shannon Barry & Associates 1103 East Carson Street Pittsburgh, PA 15203 Dear Ms. Schrempf: This Opinion is issued in response to the appeal of Advice of Counsel 13-524, which was issued on April 25, 2013. I.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. II.FACTUAL BASIS FOR DETERMINATION: By letter dated April 29, 2013, you appealed Advice of Counsel 13-524, which was issued on April 25, 2013. Your initial advisory request presented facts that were summarized in the Advice of Counsel as follows: 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 Schrempf, 13-004 July 18, 2013 Page 2 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) 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. Schrempf, Advice of Counsel 13-524, at 1-2. Based upon the above submitted facts, you requested an advisory as to whether the Ethics Act would prohibit Mr. Similo from acting as a consultant to the Authority. Advice of Counsel 13-524 determined that 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, 51 Pa. Code § 11.1 et seq., and that 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 Advice further determined that Mr. Similo’s former governmental body is the Authority in its entirety. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act as applicable to Mr. Similo, and further stated: 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- Schrempf, 13-004 July 18, 2013 Page 3 008; Confidential Opinion, 93-005; Nanovic, Advice 10-567. Schrempf, Advice of Counsel 13-524, at 4. By letter dated April 29, 2013, you appealed Advice of Counsel 13-524. In your appeal letter, you contend that in providing the proposed consulting services to the Authority, Mr. Similo would not be representing any person before the Authority Board but would be acting on behalf of and working directly with the Authority Board. You further contend that none of Mr. Similo’s proposed actions would fit the definition of the term “represent.” By letter dated May 30, 2013, you were notified of the date, time and location of the public meeting at which your request would be considered. III.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, this 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. In considering the merits of your appeal, we note that you do not dispute the Advice of Counsel’s determination that 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 this Commission, and that 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. You do not contest that Mr. Similo’s former governmental body is the Authority in its entirety. We further note that Advice of Counsel 13-524 accurately apprised you of the nature of the Section 1103(g) restrictions and of certain important Commission precedents pertaining to that Section. Accordingly, we adopt and incorporate herein by reference the Advice’s recitation of the Section 1103(g) restrictions. Therefore, for the first year following termination of service as an Authority Board Member, Section 1103(g) of the Ethics Act would apply to Mr. Similo and restrict “representation” of a “person” before the Authority with promised or actual compensation. 65 Pa.C.S. § 1103(g). Essentially, what you have appealed is the determination of the Advice of Counsel that if Mr. Similo would enter into a consulting contract with the Authority and/or provide consultant services to the Authority with promised or actual compensation during the one- year period of applicability of Section 1103(g) of the Ethics Act, such activities would constitute prohibited “representation” of “persons” before the Authority. As noted in Advice of Counsel 13-524, Section 1103(g) of the Ethics Act provides as follows: § 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). Schrempf, 13-004 July 18, 2013 Page 4 The terms “represent” and “person” are defined in the Ethics Act as follows: Schrempf, 13-004 July 18, 2013 Page 5 § 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. 65 Pa.C.S. § 1102. The term “person” is defined to include corporations and individuals; we have previously determined that it includes the former public official/public employee himself. Confidential Opinion, 93-005. The term “represent” is broadly defined to prohibit acting on behalf of any person in any activity. This Commission has held that a former public official or former public employee may not enter into a consulting contract with his former governmental body during the first year following termination of public service because in providing such consulting services, the former public official or former public employee would be acting on behalf of a person—whether a business or himself—before his former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Confidential Opinion, 93-005; Confidential Opinion, 97-008; Shaub, Order 1242. The factual scenario that you have submitted is not complex, and it falls squarely within the prohibitions of Section 1103(g). Under the submitted facts, by entering into a consulting contract with the Authority and/or providing consultant services to the Authority, Mr. Similo would necessarily be acting on behalf of persons—S&S Scientific and himself— in activity before the Authority. Cf., Confidential Opinion, 93-005; Confidential Opinion, 97- 008; Shaub, supra. During the first year following termination of his 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, as such activities would constitute prohibited representation of persons—S&S Scientific and himself—before the Authority. Based upon the above analysis, we deny the appeal and affirm Schrempf, Advice of Counsel 13-524. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV.CONCLUSION: In the former capacity as a Member and Chairman of the Board of the Elizabeth Township Sanitary Authority (“Authority”), 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 an Authority Board Member, 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. Under the submitted facts, during the first year following termination of his 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 Schrempf, 13-004 July 18, 2013 Page 6 actual compensation, as such activities would constitute prohibited representation of persons—S&S Scientific and himself—before the Authority. The appeal is denied. Advice of Counsel 13-524 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, John J. Bolger Chair