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HomeMy WebLinkAbout92-518STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 29, 1992 92 -518 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Employment, Former Public Official, Section 3(g), Hiring as Township Employee. This responds to your letters of November 18, 1991, December 11, 1991, December 27, 1991, and January 20, 19 9 2 , in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon township supervisors with regard to hiring a supervisor who will be going off the board. Facts: As Solicitor for Township A, you seek the advice of the State Ethics Commission as to whether it would be unethical, illegal or inappropriate for the Township Supervisors to hire a Supervisor who will be going off the Board as of December, 1991. You assure this Commission that there is no gift, loan, promise or reward being promised by any parties that would be in violation of Section 3(b) or 3(c) of the Ethics Law, and that the Supervisor who is leaving the Board will be careful not to violate Section 3(f). You state that the only provision which you believe would have any relevance is Section 3(g). However, because the Supervisor to be hired would be an employee of the governmental body and not employed by any other third person or entity, you do not see where the Township or any of its officials would be in violation of Section 3(g). You note that the Supervisor who would be hired would have the duties of a laborer working on the roads and as an administrator working in the Township office when needed. You specifically inquire as to January 29, 1992 Page 2 whether there would be any impropriety in the Supervisors acting in the above manner. Discussion: As Township Supervisors for Township A, each Township Supervisor is a public official as that term is defined under the Ethics Law, and hence each Supervisor is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the January 29, 1992 Page 3 Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 anything 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(f) of the Ethics Law provides: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract January 29, 1992 Page 4 or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an open and public process must be used in all situations where a public official /employee is otherwise appropriately contracting with his own governmental body in an amount of $500.00 or more. This open and public process would require: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation cr administration of the contract. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) 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 January 29, 1992 Page 5 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 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. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and the reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. It is initially noted that the facts which you have submitted imply but do not specify that the hiring would take place after the Supervisor leaves the Board. It is recommended that 53 P.S. 5 65410 be reviewed so that its requirements may be observed as to any incompatibility of positions held simultaneously with the position of Township Supervisor. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, it is noted that you have assured this Commission that none of the parties would be acting so as to violate Sections 3(b) or 3(c), and that the Supervisor who will be leaving the Board will be careful not to violate section 3(f). As for Section 3(a), that Section would not apply to the Board of Township Supervisors as a governmental body, but rather would apply to the conduct of the individual Supervisors as public officials. Section 3(a) would prohibit the use of authority of office or confidential information received by holding public office for the private pecuniary benefit of the public official himself, any member of his immediate family, or any business with which he or a member of Zis immediate family is associated. Under the circumstances which you have presented, Section 3(a) would only apply to restrict the conduct of the Supervisor January 29, 1992 Page 6 to be hired. Section 3(a) would not havg applicability to the other Supervisors with regard to tim hiring, unless the Supervisor to be hired would be an immediate family member of one or more of the other Supervisors. The Supervisor to be hired would have a conflict of interest as to any matter pertaining to the hiring for the positions which he seeks to fill. Section 3(a) would specifically prohibit this Supervisor from using the status of his public office or his activities to advance an opportunity of future employment with Township A and /or to eliminate any potential competitors who would be competing with him for such employment position(s) with Township A. See, Casner Advice 91- 590 -S. Section 3(a) of the Ethics Law would prohibit a use of the authority of office or confidential information received by holding a public position so as to obtain employment with the Township. This Supervisor could not have any input or participation of any nature whatsoever in designing the necessary qualifications and skills for the positions so as to further his own chances at filling a slot with Township A. This Supervisor could not vote or otherwise participate in the hiring decision. In each instance of a conflict of interest, the disclosure requirements of Section 3(j) as set forth above would have to be observed. Furthermore, Section 3(f) of the Ethics Law would prohibit any such contracting with an incumbent public official /public employee where there has been no open and public process, but rather, private negotiations between the governmental body and the public official /public employee. See, Confidential Opinion 89 -019, supra It is therefore assumed that such prohibited activities as discussed above have not occurred. Turning now to the application of Section 3(g), upon termination of public service, the Township Supervisor would become a "former public official" subject to Section 3(g) of the 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 xfor one year after he leaves that body. Initially, to answer your request the governmental body with which the Supervisor has been associated while working with January 29, 1992 Page 7 Township A 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 the Supervisor has been associated upon termination of public service would be Township A in its entirety. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly inASharp, Opinion 90-009 - R, it was determined that a former legi assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with Township A, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis Township A. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or contro but extended to the entire governmental body with which the p-iblic official /employee was associated. The foregoing intent is reflected in the January 29, 1992 Page 8 legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law :oust be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which the Township Supervisor has been associated is Township A. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year restriction against such "representation," the Ethics Law defines "Represent" as follows: Section 2. 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 submitting bid or contrast proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. January 29, 1992 Page 9 "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matt:rs before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. In Shay, Opinion 91 -012, the Commission held that Section 3(g) would prohibit 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 though the invoices pertained to a contract wjiich existed prior to termination of public service. Therefore, within the first year after termination of service, the Township Supervisor who will be going off the Board should not engage in the type of activity outlined above. The Township Supervisor who goes off the Board may assist in the preparation of any documents presented to Township A so long as he is not identified as the preparer. He may also counsel any person regarding that person's appearance before Township A. Once again, however, the activity in this respect should not be revealed to Township A. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of Township A to secure information which is available to the general public. This must January 29, 1992 Page 10 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. The above restrictions have been set forth so as to provide a complete answer to your inquiry. However, in this particular case, the outgoing Supervisor would be employed by the very governmental body with which he had been formerly associated, with his new employment capacity to be as a laborer and as an administrator working in the Township office. The submitted facts do not reveal the specific duties and responsibilities of the administrative position. For purposes" of this Advice, it is assumed that in the new, administrative position the former Township Supervisor would be within the definition of "public employee" as set forth in the Ethics Law. Therefore, upon commencing employment with Township A, the former Township Supervisor would become a "public employee" and would thereby resume a public position with the very same governmental body. He would be subject once again to all of the restrictions and requirements of the Ethics Law which apply to public officials /public employees. Township A would no longer be a governmental body with which this former Supervisor had been associated, as encompassed within Section 3(g), because in his new status as a "public employee" he would renew that association with that very same governmental body. The restrictions of Section 3(g) would at that point cease to apply to this individual. However, Section 3(g) would apply to him each and every time he becomes a "former public official" or "former public employee," and each time for a full one -year period. The Ethics Law does not limit the number of times Section 3(g) may apply to a particular individual. 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 conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Second Class Township Code, although it has been recommended that 53 P.S. S 65410 be reviewed so that its requirements may be observed as to any incompatibility of positions held simultaneously with the position of Township Supervisor. Conclusion: As a Township Supervisor for Township A, each Township Supervisor is to be considered a "public official" as defined in the Ethics Law. Upon termination of service with Township A, the Supervisor who will be going off the Board as of December, 1991 would become a "former public official" subject to Section 3(g) of the Ethics Law. The former governmental body January 29, 1992 Page 11 is Township A. The restrictions as to representation and as to Sections 3(a), (b), (c) and (f) outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, 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 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. Sincerely, Vincent J. Dopko Chief Counsel