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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 Shaver, 15-559 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, Shaver, 15-559 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