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HomeMy WebLinkAbout88-517 CharlesworthTimothy D. Charlesworth, Esquire 824 Walnut Street P. 0. Box 4485 Allentown, PA 18105 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 24, 1988 ADVICE OF COUNSEL 88 -517 Re: Planning Commissioner, Public Official, Member of Municipal Body, Representation During and After Public Service Dear Mr. Charlesworth: This responds to your letter of January 8, 1988, in which you requested advice from the State Ethics Commission. Issue: Under the State Ethics Act, whether a planning commissioner is a public official, whether a member of a municipal body may represent an individual before that body while the member is serving on that body and whether the member of the governmental body may represent an individual within one year after leaving the municipal body. Facts: In your letter you state that you represent a planning commissioner and you question whether that individual is a "public official" as that term is defined under the Ethics Act. You then state that there is nothing under the Ethics Act which would preclude a member of a municipal body from representing an individual before that body while that member is still serving on that municipal body. Lastly, you state that the only provision of the Ethics Act which would preclude representation of an individual before a municipal body relates to the one year restriction following termination of governmental service. You conclude by requesting advice under the Ethics Act as to the above inquiries. As to whether a member of a planning commission is a "public official" under the Ethics Act, the foregoing term is defined as follows: Section 2. Definitions. "Public official ." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement Timothy D. Charlesworth, Esquire February 24, 1988 Page 2 for personal expense, or to otherwi se exerci se the power of the State or any political subdivision thereof. "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. 402. The regulations of the State Ethics Commission provide the following of public official: Section 1.1. Definitions. Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (B) The body will be deemed to have the authority to otherwi se exerci se the power of the State or of a political subdivision if one of the fol1owi ng exi sts: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. Timothy D. Charlesworth, Esquire February 24, 1988 Page 3 (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. 51 Pa. Code §1.1. Assuming that the planning commission on which this individual sits is an advisory board and does not exercise the power of a political subdivision so as to meet the criteria set forth in the regulation, then a member of that planning commisison would not be a "public official" as that term is defined in the Ethics Act. Turning to the question as to whether a member of a municipal body may represent an individual before that body while the member is still serving, that member would be a "public official" as that term is defined in the Ethics Act. 65 P.S. §402. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain Timothy D. Charlesworth, Esquire February 24, 1988 Page 4 other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. COMM . 529 (1983). See also Yocabet v. State Ethics Commission, Pa. COMM . , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes, 85 -010. It is further provided in Section 3(b) of the Ethics Act: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official must observe, one must neither offer nor accept anything of value on the understanding or with the intention that his official judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Timothy D. Charlesworth, Esquire February 24, 1988 Page 5 As to whether a member of a municipal body may simultaneously serve with that body and also represent individuals before that body, the Ethics Commission has determined that the main prohibition under the Ethics Act is that one may not serve the interest of two persons, groups or entities whose interests may be adverse. See Alfono, 80 -007. In the second situation outlined above, the member of the municipal body would be serving entities with interests which are adverse to each other because he would be simultaneously serving on the municipal body and also representing the interest of individuals before that governmental body. See Rohal Advice, 87 -650. Therefore, under Section 3(a) of the Ethics Act, a conflict of interest would arise on the part of the member of the municipal body when he would serve on that body and also represent individuals before that municipal body. Regarding the third inquiry concerning the restrictions imposed upon a member of a governmental body within the one year after his termination of service, Section 3(e) of the Ethics Act provides: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). Consequently, upon termination of this employment, he would become a "former public official" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403. Initially, it is necessary to identify the "governmental body" with which he is associated while working with the municipal body. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981) . Timothy D. Charlesworth, Esquire February 24, 1988 Page 6 In this case, his jurisdiction, responsibility, influence and control appears to be the municipal body. Thus, the "governmental body" with which he has been "associated" upon the termination of his employment would be the municipal body. Therefore, within the first year after he would leave the municipal body, Section 3(e) of the Ethics Act would apply and restrict his "representation" of persons or new employers vis -a -vis the municipal body. The Ethics Act would not affect his ability to appear before agencies or entities other than with respect to the municipal body. Likewise, there is no general limitation on the type of employment in which he may engage, following his departure from the municipal body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. •In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which he has been associated, (that is the municipal body), including, but not limited to, negotiations or renegotiations on contracts with the municipal body; 2. Attempts to influence the municipal body; 3. Participating in any matters before the municipal body over which you had supervision, direct involvement, or responsibility while employed by the municipal body; Timothy D. Charlesworth, Esquire February 24, 1988 Page 7 4. Lobbying, that is representing the interests of any person or employer before the municipal body in relation to legislation, regulations, etc. See Russell Opinion, 80 -048 and Seltzer Opinion, 80 -044. The Commission has also held that preparing and signing a proposal, document or bid, or listing his name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the municipal body, constitutes an attempt to influence his former governmental body. See Ki l a reski Opinion, 80 -054. Therefore, within the first year after he leaves the municipal body, he should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of his name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the municipal body, is not prohibited as "representation." See Kotalik Opinion, 84 -007. He may, assist in the preparation of any documents presented to the municipal body so long as he is not identified as the preparer. He may also counsel any person regarding that person's appearance before the municipal body. Once again, however, his activity in this respect should not be revealed to the municipal body. Of course, any ban under the Ethics Act would not prohibit or preclude him from making general informational inquiries of the municipal body to secure information which is available to the general public. See Cutt Opinion, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the municipal body his representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, his activities would not be prohibited by the Ethics Act. See Dalton Opinion, 80 -056 and Beaser Advice, 81 -538. 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 Ehtics Act has not been considered. Conclusion: A member of a planning commission which is merely advisory in nature and does not exercise the power of a political subdivision would not be a "public official" provided the criteria set forth in Regulation 1.1 of the Ethics Commission are satisfied. A member of a municipal body may not represent under Section 3(a) of the Ethics Act individuals before that governmental body while that official continues to serve as a member of that body. Under Section 3(e) of the Ethics Act, a public official may not represent persons before his governmental body within the first year after service as outlined above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Timothy D. Charlesworth, Esquire February 24, 1988 Page 8 Further, should he terminate his employment or service, as outlined above, he is reminded that the Ethics Act also requires him to file a Statement of Financial Interests for the year following his termination of service. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, V1ncent . Dopko General Counsel