HomeMy WebLinkAbout16-563 Giangiordano3
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
November 21, 2016
To the Requester:
Mr. Michael A. Giangiordano
Dear Mr. Giangiordano:
16-563
This responds to your letter dated September 28, 2016, by which you requested
an advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P—a-.G-S. § 1101 et seg., would impose prohibitions or restrictions upon an individual,
who resigned from hts position as a member and president of a charter school board of
trustees to order to serve as the acting chief executive officer of the charter school for a
period of less than one month, with regard to: (1) being reappointed as a member of the
charter school board of trustees following termination of his service as the acting chief
executive officer; or (2) receiving compensation for his service as the acting chief
executive officer.
Facts: You request an advisory from the Commission based upon submitted
acts hat may be fairly summarized as follows.
At the time that you submitted your inquiry, you were serving as the Acting Chief
Executive Officer of The Preparatory Charter School of Mathematics, Science,
Technology & Careers ( "the Charier School "). You had resigned from your previous
position as a Member and President of the Board of Trustees of the Charter School
("Charter School Board of Trustees ") in order to serve as the Acting Chief Executive
Officer for a period of less than one month. You stated that your service as the Acting
Chief Executive Officer would end as of September 29, 2016.
You stated that you are supposed to be monetarily compensated for your service
as the Acting Chief Executive Officer. You further stated that ou intend to be
reappointed to the Charter School Board of Trustees at some time following termination
of your service as the Acting Chief Executive Officer.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would permit you to be reappointed as a Member
of the Charter School Board of Trustees following termination of your
service as the Acting Chief Executive Officer of the Charter School; and
FAX: (717) 7B7 -0806 • Web Site: www.ethics.state. p a,us • e -mail: ethics state. a.us
Gian iordano, 16 -563
November 21, 2016
Page 2
(2) Whether the Ethics Act would permit you to receive compensation for your
service as the Acting Chief Executive Officer of the Charter School.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(l 1) of
e Ethics Ac t, 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 disc osed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. To
the extent that our inquiry relates to conduct that has already. occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As the Acting Chief Executive Officer of the Charter School, you would be
considered a "public official" subject to the Ethics Act. See, 24 P.S. § 17- 1715- A(12).
Consequently, upon termination of your service as the Acting Chief Executive
Officer of the Charter School, you would become a "former public official" subject to
Section 1103(g) of the Ethics Act.
Section 1103(g) of the Ethics Act restricts 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 bodv 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
submitn% 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.
Gian iordano, 16 -563
November 1, 2016
Page 3
r
"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.
66 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 employee�mself 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
pny activity.
The governmental body with which you would be deemed to have been
associated upon termination of your service as the Acting Chief Executive Officer of the
Charter School would be the Charter School in its entirety. Therefore, upon termination
of your service as the Acting Chief Executive Officer of the Charter School, Section
1103(g) of the Ethics Act would become applicable to you and would restrict
"representation" of a "person" before the Charter School.
However, per Commission precedents, 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, 97008; Long, Opinions 97 -010 and
97 -010- ; Mc lat ery Opinion 00 -004.
Therefore, in response to your first question, you are advised that Section
1103(g) of the Ethics Act would not prohibit you from being reappointed as a Member of
the Charter School Board of Trustees following termination of your service as the Acting
Chief Executive Officer of the Charter School.
If you would be reappointed as a Member of the Charter School Board of
Trustees, you would in that capacity be a public official subject to the provisions of the
Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
Gian iordano 16 -563
November 21, , 2016
Page 4
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three - member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), 0).
The following terms related to Section 1103(x) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official /public employee is
prohibited from using the authority of public office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public officiallpublic employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. The use of
authority of office is not limited merely to voting, but extends to any use of authority of
office including, but not limited to, discussing, conferring with others, and lobbying for a
particular result. Juliante, Order 809. In each instance of a conflict of interest, a public
official /public employee would be required to abstain from participation, which would
include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act
would be applicable. Additionally, the disclosure requirements of Section 11030) of the
Ethics Act would have to be satisfied in the event of a voting conflict.
One of the exclusions to the statutory definition of "conflict" or "conflict of
interest," referred to herein as the "de minimis exclusion," precludes a finding of conflict
Gian lordano, 16 -563
November 21, 2016
Page 5
of interest as to an action having a de minimis (insignificant) economic impact. Thus,
when a matter that would otherwise constitute a conflict of interest under the Ethics Act
would have an insignificant economic impact, a conflict would not exist and Section
1103(a) of the Ethics Act would not be implicated. See, Kalb, Order 1322;
Schweinsburg, Order 900. The Commission has determine the ap-p cability of the de
minimis clusion on a case -by -case basis, considering all relevant circumstances. In
the .past, the Commission has found amounts up to approximately $1,200 to be de
minimis.
In response to your second question, you are advised that Section 1103(a) of the
Ethics Act would not prohibit you from receiving compensation for services that you
performed for the Charter School as the Acting Chief Executive Officer if you would not
have used the authority of your position(s) as a Member of the Charter School Board of
Trustees to obtain such compensation or the amount of compensation you would
receive for having performed such services would be de minimis.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion: As the Acting Chief Executive Officer of The Preparatory Charter
School of athematics, Science, Technology & Careers "the Charter School"), you
would be considered a "public official" subject to the Public Official and Employee Ethics
Act ("Ethics Act "), 65 Pa.C.S. § 1101 et se . Based upon the submitted facts that: (1)
you had resigned from your previous position as a Member and President of the Board
of Trustees of the Charter School ( "Charter School Board of Trustees ") in order to serve
as the Acting Chief Executive Officer for a period of less than one month; (2) your
service as the Acting Chief Executive Officer would end as of September 29, 2016; (3)
you are supposed to be monetarily compensated for your service as the Acting Chief
Executive Officer; and (4) ou intend to be reappointed to the Charter School Board of
Trustees at some time following termination of your service as the Acting Chief
Executive Officer, you are advised as follows.
Upon termination of your service as the Acting Chief Executive Officer of the
Charter School, ou would become a "former public official" subject to Section 1103(8)
of the Ethics Act. The former governmental body would be the Charter School in its
entirety. For the first year following termination of your service as the Acting Chief
Executive Officer of the Charter School, Section 1103(g) of the Ethics Act would apply
and restrict "representation" of a "person" before the Charter School. Section 11 03 ) of
the Ethics Act would not prohibit you from being reappointed as a Member o the
Charter School Board of Trustees following termination of your service as the Acting
Chief Executive Officer of the Charter School.
If you would be reappointed as a Member of the Charter School Board of
Trustees, you would in that capacity be a public official subject to the provisions of the
Ethics Act. Section 1103(a ) of the Ethics Act would not prohibit you from receiving
compensation for services that you performed for the Charter School as the Acting
Chief Executive Officer if you would not have used the authority of your position(s) as a
Member of the Charter School Board of Trustees to obtain such compensation or the
amount of compensation you would receive for having performed such services would
be de minimis. 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.
Giaan iord�ano, 16 -563
November 21, 2016
Page 6
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have an
yy
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 aactuaa
received at the Commission within thirty (30) days of the date of
vice pursuant to 51 Pa. Code § 93.2(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.
Since r ly,
(ie/
Chief Counsel