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HomeMy WebLinkAbout90-571 HabermanDear Mr. Haberman: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 6, 1990 / Mr. Miles W. Haberman 90 -571 940 Iron Street Lehighton, PA 18235 Re: Former Public Official; Section 3(g); Borough; Former Mayor; Appointment As Borough Manager. This responds to your letter of May 29, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon the employment, following termination of service, of the borough mayor as borough manager. Facts: After concluding a four year term as Mayor f r the Borough of Lehighton in 1989, you have decided not to seek a second term. You are currently employed in the banking industry and have been employed in that profession for the past sixteen years. Recently you learned that the borough manager resigned and that the position is being advertised. You conclude by requesting advice as to whether you are eligible for the position of borough manager in light of the fact that your term of office as mayor concluded in 1989. Discussion: As a Mayor for Lehighton Borough, you were to be considered a "public official" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of the Commission. 65 P.S. 402; 51 Pa. Code 1.1. Consequently, upon termination of public service, you would become a "former public official" subject to Section 3(g) of the Mr. Miles W. Haberman Page 2 Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) 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 for one year after he leaves that body. Initially, to answer your request the governmental body with which you were associated while working with the borough must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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 employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would be the Lehighton Borough, hereinafter Borough Therefore, within the first year after termination of service with the Borough, Section 3(g) of the Ethics Law would normally apply and restrict representation of persons or new employers vis -a -vis the Borough. However, in Boonin, Opinion 90 -003, the Commission determined that the restrictions of Section 3(g) quoted above did not apply to a situation where a individual was changing positions of public service within the same municipality. Thus, in Boonin, supra, the Commission determined that the Ethics Law would not prohibit a member of the Philadelphia Gas Commission Mr. Miles W. Haberman Page 3 from resigning that position and then taking up the position CEO of the Philadelphia Gas Works In the instant matter, you have left your position as Mayor of the Borough of Lehighton and now seek to apply for the position of borough manager. Based upon Boonin, supra, Section 3(g) of the Ethics Law would not prohibit you from applying for the position of borough manager of the Borough. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of c'nduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As a Mayor, you were to be considered a "public official" as defined in the Ethics Law. Upon termination of service with Lehighton Borough, you would become a "former public official" subject to the Ethics Law. Under Boonin, supra, Section 3(g) of the Ethics Law would not prohibit you as the former Mayor of the Borough of Lehighton from applying for the position of Borough Manager of Lehighton. The propriety of the proposed conduct has only been addressed under the Ethics Law. The Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), 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 Mr. Miles W. Haberman Page 4 Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. .S' erely, Vincent t. D•pko Chief Counsel