Loading...
HomeMy WebLinkAbout17-580 FrancePHONE: 717 -783 -1610 TOLL FREE: 1- 800 - 932 -0936 ADVICE OF COUNSEL December 12, 2017 To the Requester: Mr. Jack H. France, Esquire Dear Mr. France: FACSIMILE: 717 -787 -0806 WEBSITE: www.ethics.12a.gov 17 -580 This responds to your letters dated October 10, 2017, and October 20, 2017, 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 l a.7S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a member of a municipal authority board with regard to being appointed to the position of executive director of the municipal authority, where the individual would resign from the municipal authority board if chosen for employment in such position. Facts: You have been authorized by Karen Marino ( "Ms. Marino ") and Dorothy Drowicz ( "Ms. Urbanowicz ") to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. The Mon Valley Refuse Disposal Authority ( "Authority ") is a joint authority organized by the City of Monessen ( "City' and the Borough of North Belle Vernon ("Borough "), each of which is located in Westmoreland County, Pennsylvania. Ms. Marino and Ms. Urbanowicz, hereinafter collectively referred to as "the Individuals," are Members of the Authority Board. Ms. Urbanowicz's husband also serves as an Authority Board Member. The Authority is managed by an Executive Director who is appointed by the Authority Board. The position of Executive Director is part -time and involves administering the Authority's contract with a private hauler and attending to the day -to- day office management. The elected officials of the City and the Borough consult with the Executive Director if the citizens of their municipalities raise issues about the duties of the contractor. You state that there has never been an occasion where the Executive Director had any need to participate in the representation of anyone who appeared before the Authority Board and that the Executive Director is not involved in trying to influence the decisions of the Authority Board. The current Executive Director is resigning from her position. The Authority Board received five responses to a classified advertisement seeking applications for the Executive Director position. includina a resoonse from each of the Individuals. France, 17 -580 fiber 12, 2017 Page 2 In a telephone conversation with Commission staff on October 23, 2017, you stated that as to each of the Individuals, such Individual would resign from the Authority Board if she would be chosen for employment as the Executive Director of the Authority. Based upon the above submitted facts, you ask whether the Ethics Act would permit either Individual to accept a position as the Executive Director of the Authority, where the Individual would resign from the Authority Board if she would be chosen for employment in such position; and if so, whether the Individual's appointment to such position should be conditioned upon the requirement that the Individual would not represent anyone before the Authority Board within one year of resigning to become the Executive Director of the Authority. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 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 disclosed 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 your 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 Members of the Authority Board, the Individuals are public officials 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 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 France, 17-580 fiber 12, 2017 Page 3 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(a) 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 official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting cow lint, Section 11030) of the Ethics Act would require the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. Section 1103(8g) of the Ethics Act imposes post - termination restrictions upon former public officials [public employees: § 1103. Restricted activities France, 17 -580 December 12, 2017 Page 4 (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 body with which he has been associated one year after a eaves t at 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 submittingg bid or contract proposals which are signed by or contain tre 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. "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 em .ployee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to your advisory request, you are advised as follows. As to each Individual, subject to the condition that there would be no use of authority of the Individual's public office as an Authority Board Member or confidential information received by being in her public office to advance the prospects of her obtaining employment as the Executive Director of the Authority, Section 1103(a) of the Ethics Act would not prohibit the Individual from being appointed to the position of Executive Director of the Authority where the Individual would resign from the Authority Board if chosen for employment in such position. Upon resigning from her position as an Authority Board Member, the Individual would become a "former public official" subject to the restrictions of Section 1103(g) of the Ethics Act. The governmental body with which the Individual would be deemed to have been associated upon termination of service as an Authority Board Member would be the Authority in its entirety. While applicable, Section 1103(8) of the Ethics Act would restrict "representation" of a "person" before the Authority. 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, 97 -008; Long, Opinions 97 -010 and 97-010-R; Mc lathery, Opinion 00 -004. France, 17-580 Die Dec—ember 12, 2017 Page 5 Therefore, Section 1103(g) of the Ethics Act would not prohibit the Individual from accepting the employment position of Executive Director of the Authority following her resignation from the Authority Board. If the Individual would be appointed as the Executive Director of the Authority, she would in that capacity be considered a public official/public employee subject to the Ethics Act, and Section 1103(g) of the Ethics Act would cease to apply. 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 Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Municipality Authorities Act. Conclusion: Based upon the submitted facts that: (1) the Mon Valley Refuse Disposal Authority ( "Authorit ') is a Joint authority organized b the City of Monessen ( "City ") and the Borough of North Belle Vernon ( Borough "), each of which is located in Westmoreland County, Pennsylvania; (2 ) Karen Marino and Dorothy Urbanowicz ( "Ms. Urbanowicz "), hereinafter collectively referred to as "the Individuals," are Members of the Authority Board; (3) Ms. Urbanowicz's husband also serves as an Authority Board Member; (4) the Authority is managed by an Executive Director who is appointed by the Authority Board; (5) the position of Executive Director is part -time and involves administering the Authority's contract with a private hauler and attending to the day -to- day office management; (6) the elected officials of the City and the Borough consult with the Executive Director if the citizens of their municipalities raise issues about the duties of the contractor; (7) there has never been an occasion where the Executive Director had any need to participate in the representation of anyone who appeared before the Authority Board, and the Executive Director is not involved in trying to influence the decisions of the Authority Board; (8) the current Executive Director is resigning from her position; (9) the Authority Board received five responses to a classified advertisement seeking applications for the Executive Director position, including a response from each of the Individuals; and (10) as to each of the Individuals, such Individual would resign from the Authority Board if she would be chosen for employment as the Executive Director of the Authority, you are advised as follows. As Members of the Authority Board, the Individuals are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. As to each Individual, subject to the condition that there would be no use of authority of the Individual's public office as an Authority Board Member or confidential information received by being in her public office to advance the prospects of her obtaining employment as the Executive Director of the Authority, Section 1103(a) of the Ethics Act would not prohibit the Individual from being appointed to the position of Executive Director of the Authority where the Individual would resign from the Authority Board if chosen for employment in such position. Upon resigning from her position as an Authority Board Member, the Individual would become a "former public official" subject to the restrictions of Section 1103(g) of the Ethics Act. The governmental body with which the Individual would be deemed to have been associated upon termination of service as an Authority Board Member would be the Authority in its entirety. While applicable, Section 1103(g) of the Ethics Act would restrict "representation" of a "person" before the Authority. Section 1103(7g) of the Ethics Act would not prohibit the Individual from accepting the employment position of Executive Director of the Authority following her resignation from the Authority Board. If the Individual would be appointed as the Executive Director of the Authority, she would in that capacity be considered a public official/public France, 17 -580 fiber 12, 2017 Page 6 employee subject to the Ethics Act, and Section 1'103 g) of the Ethics Act would cease to apply. Lastly, the propriety of the proposed conduc� 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. 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 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 writingg and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 59 Pa. Code § 13.2(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. Sinc ly, 4�.M. Robin M. Hittie Chief Counsel Mwrr