HomeMy WebLinkAbout84-543 YetterMr. Robert E. Yetter, Solicitor
Lower Allen Township
Metzger, Wickersham, Knauss & Erb
Commonwealth National Bank Building
111 Market Street, P.O. Box 93
Harrisburg, Pennsylvania 17108
RE: Planning Commission Member; Former Township Commissioners;
Representation; Section 3(e)
Dear Mr. Vetter:
Mailing Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
April 3, 1984
ADVICE OF COUNSEL
This responds to your letter of March 2, 1984, in which you as Solicitor
for the Lower Allen Township, requested advice from the State Ethics
Commission.
Issue: You ask what restrictions are placed upon a planning commission member
and former township commissioner whose landscape architecture firm does work
within the township.
Facts: You are Solicitor for the Lower Allen Township, hereinafter, the
Township. Mr. H. Edward Black, who is a landscape architect, is a member of
the Township Planning Commission, hereinafter, the Planning Commission. He
was appointed to that position on January 3, 1984, and receives no
compensation for his services. Mr. Black has also served as an elected
Township Commissioner for the Township and his term expired on December 31,
1983. He is concerned with any restrictions placed upon his landscape
architecture firm by virtue of his positions as a former elected official and
as a current Planning Commission member.
Discussion: As an elected Township Commissioner for the Lower Allen Township,
there is no doubt that Mr. Black was a "public official" as that term is
defined within the Ethics Act. Therefore, upon expiration of his term as
Township Commissioner, Mr. Black became a "former public official." As a
"former public official ", Mr. Black's conduct must conform to the requirements
of Section 3(e) of the Ethics Act as set forth below:
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
84 -542
Mr. Robert E. Yetter, Solicitor
April 3, 1984
Page 2
(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).
It is clear that while Mr. Black served as an elected Township
Commissioner, the governmental body with which he was associated was the Lower
Allen Township Board of Commissioners. Thus, the one -year restrictions in
Section 3(e) apply to Mr. Black's representation of persons before the Lower
Allen Township Board of Commissioners.
The Ethics Commission has determined that the "representation"
prohibition of Section 3(e) extends to such activities as:
1. personal appearances before the governmental body with which Mr.
Black was associated, that is, the Township Board of Commissioners,
including but not limited to negotiations or contracts with that
body;
2. attempts to influence the Township Board of Commissioners;
3. participation in any matter before the Township Board of
Commissioners in any case over which Mr. Black had supervision,
direct involvement, or responsibility while serving as a Township
Commissioner;
4. Lobbying, that is representing the interests of any person before
the Township's Board of Commissioners in relation to legislation,
regulations, etc. See Russell, 80 -048; Seltzer, 80 -044.
The mere act of preparing and signing a proposal or appeal, or having Mr.
Black's name appear as an employee who will serve in regard to the proposal or
appeal, constitutes an attempt to influence his former governmental body,
should such a proposal or appeal be presented to the Township's Board of
Commissioners. Kilareski, 80- 054. This is because the inclusion of his name
on the proposal has at least the potential to influence the decision of the
Township Board of Commissioner, and is, therefore, prohibited within the one
year period after Mr. Black has left the Township Board of Commissioners. You
should also be aware that the Act requires Mr. Black to refrain from
"representation" where he knows, or has reason to believe, that work which he
has signed will be forwarded, or could possibly be forwarded to the Township
Board of Commissioners for approval.
While these restrictions apply to Mr. Black for the one year period
following his termination of service with the Township Board of Commissioners,
he may, nevertheless, engage in the following activities even within the one
year period:
Mr. Robert E. Yetter, Solicitor
April 3, 1984
Page 3
1. Administer, rather than negotiate or re- negotiate, any contract that
exists or is to be awarded to Mr. Black's firm so long as the
contract is entered into without the inclusion of Mr. Black's name
as noted above;
2. make general informational inquiries of the Board of Commissioners
as long as no attempt is made to influence the Board as prohibited
above;
3. utilize the knowledge and expertise gained during your tenure as a
public official so long as he does not use any confidential
information gained during that time; and
4. appear and represent any person on behalf of any client or new
employer before any governmental body, except before the Township
Board of Commissioners.
You should also be aware, as discussed above, that whether or not Mr.
Black is personally precluded from representing a client before the Board of
Commissioners, these restrictions are personal to him and do not extend to the
members of his landscape architecture firm. Morris, 80 -034. Thus, his firm
and his firm's clients may receive the benefit of his expertise even though he
personally may not represent them before the Township Board of Commissioners.
With regard to Mr. Black's status as an appointed, non - compensated
Planning Commission member, the Ethics Commission has not finally determined
whether uncompensated members of planning commissions should be considered
within the definition of "public official" as that term is defined in the
Ethics Act and interpreted by the Courts. See Snider v. Thornburgh, 469 Pa.
159, 436 A.2d 593 (1981). However, at the present, Mr. Black would not be
considered a "public official because the Snider ruling has not been applied
by this Commission to uncompensated, appointed officials other than school
directors. If Mr. Black, as a Planning Commission member, were subject to the
requirements of the Ethics Act, specifically Sections 403(a), (b), and (c),
however, he should be guided by the following discussion.
The Ethics Act would require that a public official not use his public
office or confidential information received through his holding public office
to obtain financial gain for himself, his family, or a business with which he
is associated. See 65 P.S. 403(a). The Ethics Act defines a "business" with
which an official is "associated" as follows:
"Business with which he is associated." Any business in
which the person or a member of the person's immediate
family is a director, officer, owner, employee or holder
of stock. 65 P.S. 402.
Mr. Robert E. Vetter, Solicitor
April 3, 1984
Page 4
Thus, pursuant to Section 3(a) of the Ethics Act, Mr. Black, if covered
by the Ethics Act, would not be able to use his position as a Planning
Commission member or any confidential information received through holding
that position to obtain financial gain for himself, or his_landscape
architecture business. Likewise, Mr. Black, if covered by the Ethics Act,
should abstain from discussions relating to and /or voting upon the decisions
of the Planning Commission presented by his landscape architecture business or
where his firm has been asked to or has solicited work with respect to the
items before the Planning Commission. He should place the reasons for his
abstention on the public record. See Sowers, 80 -050 and Welch, 83 -518.
Further, the Ethics Act would forbid Mr. Black from accepting any thing
of value based upon the understanding that his action or vote or judgment as a
Planning Commission member would be influenced thereby. See 65 P.S. 403(b).
Since "anything of value" includes the promise of future employment, Mr.
Black, if covered by the Ethics Act, should not allow a promise of benefit to
himself or his landscape architecture business to influence his votes or
official actions or judgment as a Planning Commission member.
Conclusion: As a former Township Commissioner, Mr. Black should conform his
conduct to the guidelines discussed above. While serving as an uncompensated
appointed member of the Planning Commission, Mr. Black is not considered a
"public official ", but if he were and he conformed his conduct to the above
discussion, the requirements of the Ethics Act would be met.
Additionally, Mr. Black should be advised that as a former public
official, he must file a Statement of Financial Interests for each year that
he held the position as Township Commissioner and for the year following his
termination of service. 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. This financial disclosure will
record information for the calendar year 1983. However, Mr. Black, as an
uncompensated member of the Planning Commission, is not a "public official"
and need not file a Statement of Financial Interests with regard to that
position.
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.
Mr. Robert E. Yetter, Solicitor
April 3, 1984
Page 5
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.
SSC /rdp
Sincerely,
Sandra S. C,istianson
General Counsel