HomeMy WebLinkAbout15-559 Shaver
ADVICE OF COUNSEL
September 29, 2015
Stephen J. Shaver
214 South Second Street
Steelton, PA 17113
15-559
Dear Mr. Shaver:
This responds to your letter dated August 24, 2015, by which you requested an
advisory from the Pennsylvania State Ethics Commission (“Commission”).
Issue:
Whether, pursuant to Section 1103(g) of the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(g), an individual formerly employed as the
Director of the Bureau of Emergency Management Technical Services within the
Pennsylvania Emergency Management Agency (“PEMA”) would be permitted during the
first year following termination of Commonwealth employment to serve in a non-
compensated position as the representative to the Pennsylvania 911 Board for the
Pennsylvania Fire and Emergency Services Institute.
Facts:
You request an advisory from the Commission regarding the post-
employment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
You state that you recently left your employment as the Director of the Bureau of
Emergency Management Technical Services within PEMA. You have been asked to
serve in a non-compensated position as the representative to the Pennsylvania 911
Board (“911 Board”) for the Pennsylvania Fire and Emergency Services Institute
(“Institute”). You state that the Institute has submitted your information to PEMA.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon you with regard to serving in a non-
compensated position as the representative to the 911 Board for the Institute.
It is administratively noted that the 911 Board is established within PEMA. See,
35 Pa.C.S. § 5303(b). A representative from the Institute shall serve as a nonvoting
Member of the 911 Board. See, 35 Pa.C.S. § 5303(b)(4)(iv). Members of the 911
Board shall serve without compensation but shall be reimbursed for their actual and
necessary travel and other expenses incurred in connection with attendance at
meetings called by the Chairperson of the 911 Board. See, 35 Pa.C.S. § 5303(b.5).
Discussion:
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
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September 29, 2015
Page 2
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.
Preliminarily, it is noted thatthe submitted facts do not include an official
Commonwealth position description for your former position as the Director of the
Bureau of Emergency Management Technical Services within PEMA. This Advice
assumes, without deciding, that in your former capacity as the Director of the Bureau of
Emergency Management Technical Services within PEMA, you would be considered a
“public employee”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 your employment with PEMA, you became a
"former public employee" subject to Section 1103(g) of the Ethics Act.
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 very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public official/public employee himself,
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September 29, 2015
Page 3
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.
The governmental body with which you are deemed to have been associated
upon termination of your employment with PEMA is PEMA in its entirety. Therefore, for
the first year following termination of your employment with PEMA, Section 1103(g) of
the Ethics Act would apply and restrict “representation” of a “person” before PEMA with
promised or actual compensation. Section 1103(g) of the Ethics Act would not apply
when the representation would not involve promised or actual compensation and
payment to you would be limited to reimbursement only for reasonable and necessary
actual expenses. Cf., Confidential Opinion, 07-012; Moore, Opinion 04-004; DiIorio,
Advice 08-600.
Accordingly, you are advised that Section 1103(g) of the Ethics Act would not
prohibit you from serving in a non-compensated position as the representative to the
911 Board for the Institute where you would receive reimbursement only for reasonable
and necessary actual expenses incurred in such service.
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 Governor’s Code of Conduct.
Conclusion:
This Advice assumes, without deciding, that in your former capacity
as the Director of the Bureau of Emergency Management Technical Services within the
Pennsylvania Emergency Management Agency (“PEMA”), you would be considered a
"public employee" 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 your employment with PEMA, you became a
"former public employee" subject to Section 1103(g) of the Ethics Act. The former
governmental body is PEMA in its entirety. For the first year following termination of
your employment with PEMA, Section 1103(g) of the Ethics Act would apply and restrict
“representation” of a “person” before PEMA with promised or actual compensation.
Based upon the submitted and administratively noted facts, you are advised that
Section 1103(g) of the Ethics Act would not prohibit you from serving in a non-
compensated position as the representative to the Pennsylvania 911 Board for the
Shaver, 15-559
September 29, 2015
Page 4
Pennsylvania Fire and Emergency Services Institute where you would receive
reimbursement only for reasonable and necessary actual expenses incurred in such
service. 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