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HomeMy WebLinkAbout84-509 MlakerLeslie J. Mlakar, Esquire c/o Edward M. Bilik Loughran, Mlakar & Bilik 704 First National Bank Bldg. Greensburg, PA 15601 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 Janauary 18, 1984 ADVICE OF COUNSEL 84 - 509 RE: Former Township Supervisor, Section 3(e), Restricted Activities Dear Mr. Mlakar: This responds to your letter of December 22, 1983, in which you requested advice from the State Ethics Commission. Issue: You asked what restrictions are placed upon the conduct of an individual who has recently finished a term as Township Supervisor. Facts: You indicate that you are writing as Counsel on behalf of Mr. Edward M. Bilik. Mr. Bilik has been a Supervisor in the Township of Mount Pleasant, hereinafter the Township, for over 20 years and has recently completed his terms of office as of January 1, 1984. In addition to serving as a Township Supervisor, Mr. Bilik also is an insurance agent trading and doing business as Edward M. Bilik Insurance Agency, hereinafter the Agency. This Agency is composed of Mr. Bilik who is a licensed insurance broker and Mark J. Bilik, his son. The question has been posed as to whether in the calendar year 1984 and thereafter, Mr. Bilik's Agency can submit proposals to the Township with respect to the Township's insurance policies or needs. You have rendered an opinion that under Act 170, the Agency could submit proposals to the Township provided the Township followed the proper process of considering and awarding bids regarding their needs. The question is whether Mr. Bilik himself could personally present these proposals to the Township. You indicate that your analysis of the Ethics Act is such that if Mr. Bilik, consistent with Section 3(c) of the Ethics Act, could obtain the insurance business of the Township while he was serving as a Supervisor, it would be inconsistent to prohibit him from seeking and securing this insurance business within the first year after he leaves public office, pursuant to Section 3(e) of the Ethics Act. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Leslie J. Mlakar, Esquire January 18, 1984 Page 2 Discussion: As are elected official, Mc 3ilik was a "public official" as that term is defined in the State Ethics Act. Upon completion of his terms of office with the Township, Mr Bilik became a "former public official ". As a "former public official" his conduct must conform to the requirements of Section 3(e) of the State Ethics Act as set forth below: (e) No former official or public eployce shall represent a person, with or without compensation, on any rnatte.r before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). As a former public official Mr. Bilik must, for the first calendar year following the end of his term of office, refrain from "representation" as the Commission has futher defined that terra vis -a -vis those governmental bodies with which he may have been associated. We begin our review of your request by asking the following questions: 1. What is the scope of the term and activity known as "representation ?" and 2. To which governmental bodies do the restrictions and prohibitions against representation extend in Mr. Bilik's case? We will address this latter question first. It is clear that as a public official elected to serve within the Township, Mr. Bilik has been associated with the Township. Therefore, for the first year following his departure from public office, pursuant to Section 3(e) of the Ethics Act, he faces restrictions with respect to his activities vis -a -vis the Township. In response to the first question, it is clear that the Commission has determined that the term "representation" as defined in the regulations of the Commission includes at least the following activities: Representation -- Any act on behalf of any person including but not limited to the following activities: personal apperances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employee. 51 Pa. Code 1.1. Additionally, decisions of the Ethics Commission clearly indicate that the concept of the prohibited activity described as "representation" in Section 3(e) extends to such activities as: Leslie J. Mlakar, Esquire January 18, 1984 Page 3 1. Personal appearances before the Township with which Mr. Bilik was associated, including but not limited to negotiation or re- negotiation on contracts; 2. attempts to influence the Township or its personnel; 3. participation in any manner before the Township in a case or matter over which he had direct supervision, involvement, or responsibility while Mr. Bilik served the Township; and, 4. lobbying, that is representing the interests of any persons before the Township where Mr. Bilik served in relation to legislation, regulations, etc. In addition, it should be noted that the mere act of signing and preparing and presenting a proposal which would bear Mr. Bilik's name or would refer to Mr. Bilik as the person who would serve under the proposal, if accepted, has been held to constitute an attempt to influence the former governmental body should such a proposal be presented to or reviewed by that body, in this case the Township. Therefore, such activity is also prohibited for the one -year period immediately following the end of Mr. Bilik's term of office. See Kilareski, 80 -054. This is because the Commission has concluded that the inclusion of Mr. Bilik's name as preparer or technical advisor on such a proposal which would be submitted to the Township has the potential for influencing the decision of the Township -- the body of with which he was associated -- and is, therefore, prohibited for this one year period. Also you should know that a submission which is made to an entity other than the Township which would be reviewed by the Township should, likewise, not include Mr. Bilik's name as preparer or person who would serve pursuant to the proposal. See Anderson, 83 -014. However, the above restrictions that are = applicable to Mr. Bilik as an individual are personal to him and do not extend to or taint the Agency or other employees of the Agency where Mr. Bilik may be employed, serve, or act as owner. See Morris, 80 -039. Accordingly, so long as Mr. Bilik does not engage in persons appearances or any of the other restricted activities itemized in Nos. 1 - 4 above and refrains from signing or preparing or being listed on any proposal that would be submitted to the Township, his Agency may submit proposals to the Township even within the first year after Mr. Bilik has ended his term of office as a Supervisor in the Township. Additionally, while the above - referenced restrictions apply to Mr. Bilik for the one year period following his term of office with the Township, he may nevertheless, within the one -year period following his departure from public service, engage in the following activities: Leslie J. Mlakar, Esquire January 18, 1984 Page 4 A. He may administer rather than to negotiate or re- negotiate any contract that exists or is to be awarded to his Agency so long as that contract or sub - contract is awarded and entered into without the inclusion of his name as outlined above. B. He may make general informational inquiries of the Township so long as there is no attempt to influence the Township as prohibited above. C. He may utilize the knowledge and expertise gained during his tenure as a public official so long as he does not use any confidential information gained during his service as a public official. n. He may appear and represent any person or client before any entity or governmental body except the Township, as outlined above. Basically, the restrictions which Mr. Bilik faces are personal to him and do not necessarily prohibit the Agency from soliciting or securing contracts with the Township even within the first year after Mr. Bilik ceases to serve as a Township Supervisor. However, Mr. Bilik may not personally appear before the Township and must observe the other requirements as set forth above in order to conform his conduct to the requirements of the State Ethics Act. Conclusion: Upon Mr. Bilik's departure from public office, he will have become a "former public official" subject to the restrictions imposed by Section 3(e) of the Ethics Act. His conduct as a former pubic official must conform to the requirements of the Act as described above and he must take note of and abide by prohibited and allowable activities as discussed above. Additionally, as a former public official, Mr. Bilik is required to file a Financial Interests Statement for each year._in which he held office and for the year following his termination of service in office. Thus, a Statement of Financial Interests should be filed no later than May 1, 1984, which represents the filing required for the year following his termination of service with this Township. This Financial Interests Statement will record information for the calendar year 1983. 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. Leslie J. Mlakar, Esquire January 17, 1984 Page 5 SSC /rdp 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. Sin erely, Sandra S. Chri ' ianson General Counsel