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HomeMy WebLinkAbout14-004 Claycomb 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: 2/7/14 DATE MAILED: 2/24/14 14-004 Kerry B. Claycomb 624 Tenth Avenue Berlin, PA 15530 Dear Mr. Claycomb: This Opinion is issued in response to the appeal of Advice of Counsel 13-581, which was issued on November 20, 2013. I.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. II.FACTUAL BASIS FOR DETERMINATION: By faxed letter dated December 19, 2013, you appealed Advice of Counsel 13-581, which was issued on November 20, 2013. Your initial advisory request presented facts that were summarized in the Advice of Counsel 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, Claycomb, 14-004 February 24, 2014 Page 2 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 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. Claycomb, Advice of Counsel 13-581, at 1-2. Advice of Counsel 13-581 determined that 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 Ethics Act and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. The Advice further determined that 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” Claycomb, 14-004 February 24, 2014 Page 3 subject to Section 1103(g) of the Ethics Act. Advice of Counsel 13-581 determined that 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. The Advice further determined that 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. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act as applicable to you, and addressed your specific questions as follows: 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. Claycomb, Advice of Counsel 13-581, at 4. By faxed letter dated December 19, 2013, you appealed Advice of Counsel 13-581. Your appeal letter did not state any particular basis for the appeal, but merely exercised the right to appeal the Advice of Counsel. By letter dated January 6, 2014, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on February 7, 2014, you appeared along with Mr. Terry DePhillips (“Mr. DePhillips”), President of Borough Council, and Mr. Scott Miller (“Mr. Miller”), Chair of the Authority, and offered commentary, which may be fairly summarized as follows. You stated that you have been employed by the Borough for 39 years, and that the Borough Council and the Authority approached you regarding the proposed consulting arrangement. Mr. DePhillips and Mr. Miller noted that the Borough is small and that the Borough and the Authority would benefit from the proposed consulting arrangement because of your institutional knowledge and experience, particularly as to grants. 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 Claycomb, 14-004 February 24, 2014 Page 4 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. We initially determine, as did Advice of Counsel 13-581, that in each of your appointed 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 this Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. It necessarily follows that 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. As noted in Advice of Counsel 13-581, 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). 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 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. Claycomb, 14-004 February 24, 2014 Page 5 We note that Advice of Counsel 13-581 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. We agree with the Advice of Counsel that: (1) 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; and (2) 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. We further determine that Advice of Counsel 13-581 correctly concluded that: (1) 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 with promised or actual compensation; and (2) 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 with promised or actual compensation. 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; Schrempf, Opinion 13-004; Shaub, Order 1242. The factual scenario that you have submitted falls squarely within the prohibitions of Section 1103(g) of the Ethics Act. Under the submitted facts, by entering into a consulting contract with Borough Council and/or providing consultant services to Borough Council, you would necessarily be acting on behalf of a person—yourself—in activity before Borough Council. Cf., Confidential Opinion, 93-005; Confidential Opinion, 97-008; Schrempf, supra; Shaub, supra. 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. Likewise, under the submitted facts, by entering into a consulting contract with the Authority and/or providing consultant services to the Authority, you would necessarily be acting on behalf of a person—yourself—in activity before the Authority. Cf., Confidential Opinion, 93-005; Confidential Opinion, 97-008; Schrempf, supra; Shaub, supra. 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. This Commission does not have the authority to create an exception which does not exist by statute. Richardson, Opinion 93-006; Long, Opinion 97-010; Ziegler, Opinion 98- 001; Whitlock, Opinion 04-015; Confidential Opinion, 07-006. Based upon the above analysis, we deny the appeal and affirm Claycomb, Advice of Counsel 13-581. Lastly, the propriety of the proposed course of conduct has only been addressed Claycomb, 14-004 February 24, 2014 Page 6 under the Ethics Act. IV.CONCLUSION: In each of your appointed 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. Under the submitted facts, 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. Under the submitted facts, 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 appeal is denied. Advice of Counsel 13-581 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