HomeMy WebLinkAbout13-581-S Claycomb
ADVICE OF COUNSEL
April 18, 2014
Kerry B. Claycomb
624 Tenth Avenue
Berlin, PA 15530
13-581-S
Dear Mr. Claycomb:
This responds to your letter dated March 15, 2014, by which you requested
supplemental advice from the Pennsylvania State Ethics Commission.
Issue:
Whether, following your retirement and termination of service as the
Borough Secretary for the Borough of Berlin (“Borough”) and the Corresponding
Secretary for the Municipal Authority of the Borough of Berlin (“Authority”), the Public
Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would permit
you to accept a position as a part-time employee with the Borough or a part-time or full-
time employee with the Authority; and if working as a part-time employee would be
permitted, whether the Ethics Act would impose restrictions upon you with regard to the
maximum number of hours that you could work per week as a part-time employee of the
Borough or the Authority.
Facts:
By letters dated August 20, 2013, and October 10, 2013, you submitted an
initial request for an advisory from the Pennsylvania State Ethics Commission. In
response to your initial advisory request, Claycomb, Advice 13-581, was issued to you
on November 20, 2013.
Advice of Counsel 13-581 was based upon submitted facts that were
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
Claycomb, 13-581-S
April 18, 2014
Page 2
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 13-581, at 1-2.
Claycomb, Advice 13-581 determined that 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, 51 Pa. Code § 11.1 et seq. The Advice further determined 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.
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
Claycomb, 13-581-S
April 18, 2014
Page 3
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 to the full Commission. On February 7, 2014, the Commission considered the
appeal and affirmed Advice of Counsel 13-581. See, Claycomb, Opinion 14-004.
In your March 15, 2014, advisory request letter, you request supplemental advice
on the following questions:
(1) Whether, following your retirement and termination of service as the
Borough Secretary and the Corresponding Secretary for the Authority, the
Ethics Act would permit you to accept a position as a part-time employee
with the Borough or a part-time or full-time employee with the Authority;
and
(2) If working as a part-time employee would be permitted, whether the Ethics
Act would impose restrictions upon you with regard to the maximum
number of hours that you could work per week as a part-time employee of
the Borough or the Authority.
Your request for supplemental advice does not include any additional facts
beyond those stated in Claycomb, Advice 13-581.
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.
This Supplemental Advice incorporates herein by reference the quotations,
citations and commentary as to the Ethics Act set forth within Claycomb, Advice 13-581.
In response to your request for supplemental advice, you are advised as follows.
Under the submitted facts of Claycomb, Advice 13-581, following your retirement
and termination of service as the Borough Secretary and the Corresponding Secretary
Claycomb, 13-581-S
April 18, 2014
Page 4
for the Authority, the Ethics Act would permit you to accept a position as a part-time
employee with the Borough or a part-time or full-time employee with the Authority.
Section 1103(g) of the Ethics Act does not prohibit the appointment/rehiring of a former
public official/public employee to a public office or position of public employment with
the former governmental body. Confidential Opinion, 93-005; Confidential Opinion, 97-
008; Long, Opinions 97-010 and 97-010-R; McGlathery, Opinion 00-004.
You are further advised that the Ethics Act would not impose restrictions upon
you with regard to the maximum number of hours that you could work per week as a
part-time employee of the Borough or the Authority.
The propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the Borough Code or the
Municipality Authorities Act.
Conclusion:
Under the submitted facts of Claycomb, Advice 13-581, following
your retirement and termination of service as the Borough Secretary for the Borough of
Berlin (“Borough”) and the Corresponding Secretary for the Municipal Authority of the
Borough of Berlin (“Authority”), the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1101 et seq., would permit you to accept a position as a part-time
employee with the Borough or a part-time or full-time employee with the Authority. The
Ethics Act would not impose restrictions upon you with regard to the maximum number
of hours that you could work per week as a part-time employee of the Borough or 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