HomeMy WebLinkAbout17-583 O'DonnellPHONE: 717 -783 -1610
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To the Requester:
Mr. Jared O'Donnell
Dear Mr. O'Donnell:
ADVICE OF COUNSEL
December 19, 2017
FACSIMILE: 717 -787 -0806
WEBSITE: www.ethics.pa.gov
17 -583
This responds to your letter received November 8, 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
F 57-S. § 1101 et seg., would impose restrictions upon employment of a School
Director for the Hazleton Area School District following termination of service as a
School Director.
Facts: You request an advisory from the Commission based upon the following
suUmitted facts.
At the time that you submitted your inquiry, you were serving as a School
Director for the Hazleton Area School District ( "School District ") and as President of the
School District School Board ( "School Board "). You stated that your term as a School
District School Director would expire in December 2017. See, Section 3 -303 of the
Public School Code, 24 P.S. 3 -303 (providing that the term of office of a school
director shall expire on the first Monday of December).
The Hazleton Area School District Foundation (the "Foundation ") is a non- profit
organization that is dedicated to raising funds to benefit the School District. The
Foundation operates under a set of bylaws and organizational directives, and the Board
of the Foundation is independent. The Foundation maintains bank accounts separate
from the School District.
You are interested in being hired as a Fundraising Director for the Foundation.
Based upon the above submitted facts, the question that is to be addressed is
whether the Ethics Act would impose prohibitions or restrictions upon you with regard to
being hired as a Fundraising Director for the Foundation. Your remaining questions
regarding the timing of such hiring shall not be addressed as they are moot.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. y§§ 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
O'Donnell, 17 -583
ec�B_& 19, 2017
Page 2
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords
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.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
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 officiallpublic employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. The use of
authority of office is not limited merely to voting, but extends 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.
O'Donnell, 17 -583
ecl� mF& 19, 2017
Page 3
Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person
shall offer or give to a public official/public employee anything of monetary value and no
public officiallpublic employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment of the public
official/public employee would be influenced thereby. Reference is made to these
provisions of the law not to imply that there has been or will be any transgression
hereof but merely to provide a complete response to the questions presented.
As a School Director for the School District, you would be considered a "public
official" subject to the Ethics Act and the Regulations of the State Ethics Commission.
Consequently, upon termination of your service as a School Director for the
School District, you would become a "former public official" subject to Section 1103(g) of
the Ethics Act.
While Section 1103(?) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public officiallpublic
employee with regard to "representing" a "person" before "the governmental body with
which he has been associated ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a erson, with
promised or actual compensation, on any matter the
governmental bodv with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "re resent," "person," "governmental body," 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 the 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. " Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"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
O'Donnell, 17 -583
ecaem�er 19, 2017
Page 4
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public officiavpub sic employee himself,
Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur,
Opinion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former ggovernmental . body as to acting on behalf of a person; and (5) lobbying.
PopovicF -, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(8) also generally prohibits the inclusion of the name of a former public official/
public employee on invoices submitted by his new employer to the former governmental
body, even if the invoices pertain to a contract that existed prior to termination of service
with. such governmental body. Shay, Opinion 91 -012. However, if such a pre - existing
contract does not involve the unit where a former public employee worked, the name of
the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. AbramsANebster,
Opinion 95 -011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103(g) only restricts the former public official/public employee with
reggard to representation before his former governmental body. The former public
officiaVpublic employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official/public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official/public employee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be deemed to have been
associated upon termination of your service as a School Director for the School District
would be the School District School Board in its entirety. Therefore, for the first year
following termination of your service as a School Director for the School District, Section
11030 of the Ethics Act would apply and restrict "representation" of a "person" before
the School District School Board.
O'Donnell, 17 -583
ecem5er 19, 2017
Page 5
You are advised that Section 1103(8) of the Ethics Act would not prohibit you
from being hired as a Fundraising Director for the Foundation. However, during the first
year following termination of your service as a School Director for the School District,
Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity(ies)
that would involve prohibited representation of a "person"—including but not limited to
the Foundation— before the School District School Board as delineated above.
With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a
ruling as to past conduct. You are generally advised that the elements of a violation of
Section 1103(a) of the Ethics Act would not be established as a result of your
prospectively entering into a business/employment relationshi with the Foundation
subject to the conditions that you: (1) did not use the authority oyour public position in
matter(s) pertaining to the Foundation when you had an actual or reasonable
expectation that you would enter into a businesslemployment arrangement with the
Foundation or would otherwise receive a private pecuniary benefit relating to the
Foundation; and (2) did not otherwise use the authority of your public position or
confidential information received as a result of being in your public position in
furtherance of securing a business/employment arrangement with the Foundation or
other private pecuniary benefit relating to the Foundation. Cf., Desmond, Opinion 08-
004.
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 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 Public School Code.
Conclusion: Based upon the submitted facts that: (1) at the time that you
submitted your inquiry, you were serving as a School Director for the Hazleton Area
School District � "School District ") and as President of the School District School Board
{ "School Board'); (2) your term as a School District School Director would expire in
December 2017; (3) the Hazleton Area School District Foundation (the "Foundation ") is
a non - profit organization that is dedicated to raising funds to benefit the School District;
(4) the Foundation operates under a set of bylaws and organizational directives, and the
BBcard of the Foundation is independent; (5) the Foundation maintains bank accounts
separate from the School District; and (6) you are interested . in being hired as a
Fundraising Director for the Foundation, you are advised as follows.
As a School Director for the School District, you would be considered a "public
official" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§ '1101 et sec.., and the Regulations of the State Ethics Commission, 51 Pa. Code §
11.1 et sew. Upon termination of your service as a School Director for the School
District, you would become a "former public official subject to Section 1103 {8) of the
Ethics Act. The former governmental body would be the School District School Board in
its entirety. For the first year following termination of your service as a School Director
for the School District, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of a "person" before the School District School Board. The restrictions
as to representation outlined above must be followed.
Section 1103(g) of the Ethics Act would not prohibit you from being hired as a
Fundraising Director for the Foundation. However, during the first year following
termination of your service as a School Director for the School District, Section 1103(g
of the Ethics Act would prohibit you from engaging in any activity(ies) that would involve
Mrepresentation of a `person " — including but not limited to the Foundation-- -
before the School District School Board as delineated above.
O'Donnell, 17 -583
ect� ember 19, 2017
Page 6
With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a
ruling as to past conduct. You are generally advised that the elements of a violation of
Section 1103(a) of the Ethics Act would not be established as a result of your
prospectively entering into a business/employment relationship with the Foundation
subject to the conditions that you: (1) did not use the authority of your public position in
matter(s) pertaining to the Foundation when you had an actual or reasonable
expectation that you would enter into a business/employment arrangement with the
Foundation or would otherwise receive a private pecuniary benefit relating to the
Foundation; and (2) did not otherwise use the authority of your public position or
confidential information received as a result of being in your public position in
furtherance of securing a business/employment arrangement with the Foundation or
other private pecuniary benefit relating to the Foundation.
Lastly, the propriety of the proposed conduct 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 actual)
received at the Commission within thirty (30) days of the date ott �►s
Advice pursuant to 51 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,
Robin M. Hittie /
Chief Counsel