HomeMy WebLinkAbout86-618 WimerMs. Cindy L. Wimer
Legal Assistant
Five East Third Street
Coudersport, PA 16915
Re: Memher, Rorough Council, Subsequent Employment with Borough
Dear Ms. Wimer:
Mailing Address
State Ethics Commission
303 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108-1470
Novemher 4, 1986
ADVICE OF COUNSEL
86 -618
This responds to your letter of nctoher 15, 1986, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether a memher of horough council may ohtain employment with
horough after he resigns his position as a memher of that governmental body.
Facts: You have requested the advice of the State Ethics Commission as
Solicitor to the Borough of Coudersport. You advise that the horough
currently has a vacancy for the position of horough manager. This position
has heen vacant for an extended period of time and you advise that there are
few qualified individuals who could fill this position. You further advise
that there is an individual who would desire to apply for this position hut he
is currently serving as the president of the horough council. This individual
has indicated, that if he were to apply for this position, he would resign his
duties as president of the horough council and he would not participate in
determining who would hest qualify for the position of horough manager. In
this respect, he would abstain, completely, from the borough's procedures in
selecting a new manager. You have requested the advice of the State Ethics
Commission in relation to the above situation.
Discussion: At the outset, it should he noted that the State Ethics
Commission will address the question presented herein within the purview of
the State Ethics Act. This advice will not review the issue under any other
statute, code, or regulation. As a horough councilmemher, in Coudersport,
Pennsylvania, the individual involved herein, is clearly a public official as
that term is defined in the State F_htics Act. 65 P.S. W12. As such, his
conduct must conform to the requirements of that law. Domalakes, 85- f11f1.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Ms. Cindy L. Wimer
November 4, 1986
Page 2
While you have not indicated such in your letter of request, we will
assume for the purposes of this advice, that the individual, who is president
of borough council , will resign his position on council in the event that he
is the successful candidate for the borough manager position. See, e.g., 53
P.S. §46104.
In relation to former public officials, which this individual will become
upon his termination as a borough councilmember, 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(e).
Generally, under this provision of law, a former public official would be
prohibited from representing any person or entity before his former
governmental body for a period of one year after such employment is
termi nated.
In relation to this restriction, the Commission has determined, that when
such a former official or employee obtains employment with another
governmental body or on a different level of 'government, the above restriction
would not be applicable. Hagen, 84 -019; Pinto, 84 -021. The Commission has
also determined that when a public official or employee transfers positions
within a .governmental system, they do not become a former governmental
employee or official. Gray, 83 -596; Cohen, 79 -045.
In light of these decisions, there would be no 3(e) restriction upon this
individual's employment. This is especially so in light of the fact, that he,
in this new employment, would still be representing the borough rather than
any private interest.
In addition to the foregoing, we must also review the situation in light
of several other provisions of the Ethics Act. Generally, the Act provides
that:
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
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).
Ms. Cindy L. Wimer
November 4, 1986
Page 3
Within this provision of law, the individual involved in this situation may
not use his current position, as a member of borough council, or any
confidential information obtained therefrom i n order to obtain a financial
gain not provided for by law. Thus, he may not, for example, vote or
participate to any extent in the authority's decision with regard to this
position or the compensation to be paid. In addition thereto, if the position
for which he will apply was specially created or, if while he was a member of
the council, any other council action has been taken specifically in relation
to this particular position that would inure specifically to the benefit of
this individual, he would be prohibited from obtaining said position.
This would be so not only under §403(a) above, but also under the
provision of the Act, which permits the State Ethics Commission to address
other areas of possible conflict. 65 P.S. §403(d). See also, Meixell v.
Hillardtown Borough, 370 Pa. 420 88 A.2d 594, (1952); Raynovich v. Romamus,
450 Pa. 391, 299 A.2d 301, (1973). Thus, as a result of the foregoing, it is
clear that the individual involved in this particular situation, must abstain
completely from all of the borough's transactions, considerations, and other
actions in relation the position of borough manager.
The Ethics Act also provides that:
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).
In this respect, there may be no offer or acceptance of anything of value
in order to secure the position. We make reference to this section of the law
not to imply that there has or will be any violation thereof but rather to
provide a complete response in relation to the question you have posed.
Finally, as noted previously, the Commission may address other areas of
possible conflict. Within this provision of law, a public official must avoid
conflicts of interests. Alfano, 80 -007. While, the Commission cannot
envision every situation where a conflict may exist, you are cautioned as to
this provision and in the event that such a situation arises, the individual
involved in this situation may wish to seek the further advice of this
Commission.
Ms. Cindy L. Wimer
November 4, 1986
Page 4
Conclusion: The State Ethics Act presents no per se prohibition as to a
borough councilmember's subsequent employment with the borough after he
resigns his position from borough council. As a public official, his conduct
must conform to the requirements of the State Ethics Act as outlined above.
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.
Si nc-
/ John J onti
Ge -ral Counsel