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HomeMy WebLinkAbout13-581 Claycomb ADVICE OF COUNSEL November 20, 2013 Kerry B. Claycomb 624 Tenth Avenue Berlin, PA 15530 13-581 Dear Mr. Claycomb: This responds to your letters dated August 20, 2013, and October 10, 2013, 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 restrictions upon: (1) a borough secretary with regard to acting as a consultant to the borough council following termination of service with the borough council; or (2) a corresponding secretary for a municipal authority with regard to acting as a consultant to the municipal authority board following termination of service with the municipal authority. Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post-employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. Since 1975, you have served as the appointed Secretary for the Borough of Berlin (“Borough”), located in Somerset County, Pennsylvania. In the aforesaid capacity, you serve under the direction of Borough Council. During your years as the Borough Secretary, you have prepared and submitted, under elected officials’ signatures and on behalf of the Borough, applications for grant money and at least one application for a PennVEST loan. You have also served in several capacities with the Municipal Authority of the Borough of Berlin (“Authority”) since 1975. You are currently the appointed Corresponding Secretary for the Authority, in which capacity you serve the Authority’s Board of Directors. You state that the Authority has no employees and that no Borough employees receive any direct compensation from the Authority for work done for the Authority. You further state that the Authority reimburses the Borough for the time spent by Borough employees on issues regarding water and sanitary sewer lines and for the clerical work which you perform for the Authority while you are working for the Borough. As the Corresponding Secretary for the Authority, your activities include, inter alia: (1) handling Authority correspondence; (2) preparing meeting agendas; (3) taking and recording meeting minutes; (4) forwarding monthly and annual reports to the Pennsylvania Department of Environmental Protection; and (5) co-signing checks. With Claycomb, 13-581 November 20, 2013 Page 2 input from and at the direction of Authority Board Members, you have prepared and submitted grant applications for funding for infrastructure improvements. You are contemplating retiring from your positions as the Borough Secretary and the Corresponding Secretary for the Authority. The President of Borough Council has asked you to consider acting as a consultant, probably contracted by the hour, to Borough Council after your retirement. The Authority Board has similarly asked if you would act as a contracted consultant to the Authority Board after your retirement. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would permit you to act as a consultant to Borough Council after your retirement; and (2) Whether the Ethics Act would permit you to act as a consultant to the Authority Board after your retirement. 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. In each of your positions as the Borough Secretary and the Corresponding Secretary for the Authority, you 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, as to each of your positions (that is, Borough Secretary and Corresponding Secretary for the Authority), upon termination of service in such position, you 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 Claycomb, 13-581 November 20, 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. 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 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; Schrempf, Opinion 13-004; Confidential Opinion, 97-008; Confidential Opinion, 93-005. 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 Claycomb, 13-581 November 20, 2013 Page 4 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/ 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 you would be deemed to have been associated upon termination of your service as the Borough Secretary would be Borough Council. Therefore, for the first year following termination of your service as the Borough Secretary, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Borough Council. The governmental body with which you would be deemed to have been associated upon termination of your service as the Corresponding Secretary for the Authority would be the Authority in its entirety. Therefore, for the first year following termination of your service as the Corresponding Secretary for the Authority, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Authority. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first question, you are advised that during the first year following termination of your service as the Borough Secretary, Section 1103(g) of the Ethics Act would prohibit you from entering into a consulting contract with Borough Council and/or providing consultant services to Borough Council with promised or actual compensation, as such activities would constitute prohibited representation of a person—yourself—before Borough Council. Cf., Shaub, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. With regard to your second question, you are advised that during the first year following termination of your service as the Corresponding Secretary for the Authority, Section 1103(g) of the Ethics Act would prohibit you from entering into a consulting contract with the Authority Board and/or providing consultant services to the Authority Board with promised or actual compensation, as such activities would constitute prohibited representation of a person—yourself—before the Authority. Cf., Shaub, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. 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. Claycomb, 13-581 November 20, 2013 Page 5 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 Borough Code or the Municipality Authorities Act. Conclusion: In each of your positions as the Secretary for the Borough of Berlin (“Borough”) and the Corresponding Secretary for the Municipal Authority of the Borough of Berlin (“Authority”), you 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. A s to each of your positions (that is, Borough Secretary and Corresponding Secretary for the Authority), upon termination of service in such position, you would become a “former public official” subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your service as the Borough Secretary would be Borough Council. For the first year following termination of your service as the Borough Secretary, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Borough Council. During the first year following termination of your service as the Borough Secretary, Section 1103(g) of the Ethics Act would prohibit you from entering into a consulting contract with Borough Council and/or providing consultant services to Borough Council with promised or actual compensation, as such activities would constitute prohibited representation of a person—yourself—before Borough Council. The governmental body with which you would be deemed to have been associated upon termination of your service as the Corresponding Secretary for the Authority would be the Authority in its entirety. For the first year following termination of your service as the Corresponding Secretary for the Authority, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Authority. During the first year following termination of your service as the Corresponding Secretary for the Authority, Section 1103(g) of the Ethics Act would prohibit you from entering into a consulting contract with the Authority Board and/or providing consultant services to the Authority Board with promised or actual compensation, as such activities would constitute prohibited representation of a person—yourself—before the Authority. The restrictions as to representation outlined above must be followed. 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 Claycomb, 13-581 November 20, 2013 Page 6 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