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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
December 27, 2019
To the Requester:
Mr. Daniel L. Stevens
Dear Mr. Stevens:
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.12a.gov
19-556
This responds to your letter dated November 18, 2019 (postmarked November 19,
2019, received November 25, 2019), 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
MOTS. § 1101 et sq., would impose restrictions upon an individual serving as a member
of a borough council with regard to accepting the employment position of borough
manager following the expiration of the individual's current term of office as a borough
council member.
Facts: You request an advisory from the Commission based upon submitted facts
pia# may be fairly summarized as follows.
You are a Member and President of Council for Slatington Borough ("Borough").
Your current term of office as a Borough Council Member expires In January 2020.
The Borough has not had a Borough Manager since January 2018, and Borough
Council has assumed the day-to-day operations of the Borough. Action to hire a Borough
Manager might be taken after a new Borough Council is seated in January2020. You
have recently been approached with regard to the possibility of you being employed in
the position of Borough Manager following termination of your service as a Member of
Borough Council.
The narrow question that is posed by your advisory request is whether the Ethics
Act would impose prohibitions or restrictions upon you with regard to accepting the
employment position of Borough Manager following the expiration of your current term of
office as a Borough Council Member in January 2020. It is administratively noted that
you previously obtained an Advice of Counsel, Stevens, Advice 13-586, issued December
19, 2013, under similar facts.
Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65
Pa. 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.
Stevens, 19-556
eL�cember 27, 2019
Page 2
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 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.
It is further initially noted that this Advice is limited to addressing the narrow
question posed.
As a Member of Borough Council, 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 Member of Borough Council,
you would become a "former public official" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) 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 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.
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 submitting
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 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.
Stevens, 19-556
e�rnber 27, 2019
Page 3
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 officiaVpd6 it c employee himself,
Confidential Opinion, 93-005, as well as a new governmental employer. L.edebur, Opinion
5-007. a term represent" is also broadly defined to prohibit acting on be 61f of any
person in pny activity.
The governmental body with which you would be deemed to have been associated
upon termination of your service as a Member of Borough Council would be Borough
Council in its entirety. While applicable, Section 1103(g) of the Ethics Act would restrict
"representation" of a "person" before Borough Council.
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 ppublic
office or position of public employment with the former governmental body. Confidential
�Opinion, 93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 an 97- - ;
e , Opinion 00-004.
Therefore, you are advised that Section 1103(g) of the Ethics Act would not prohibit
you from accepting the employment position of Borough Manager following termination
of your service as a Member of Borough Council in January 2020.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no use
of authority of office or employment, or confidential information received by being in the
public position, for a private pecuniary benefit as prohibited by Section 1103(a) of the
Ethics Act. Further, you are advised that 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 and
no public official/public employee shall solicit or accept anything of monetary value based
uppon the understanding that the vote, official action, or judgment of the public
of#iciallpublic 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.
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 Borough Code.
Conclusion: Based upon the submitted facts that: (1) you are a Member and
President o Council for Slatington Borough ("Borough"); (2) your current term of office as
a Borough Council Member expires in January 2020; (3) the Borough has not had a
Borough Manager since January 2018, and Borough Council has assumed the day-to-
day operations of the Borough; (4) action to hire a Borough Manager might be taken after
a new Borough Council is seated in January 2020; and (5) you have recently been
approached with regard to the possibility of you being employed in the position of Borough
Manager following termination of your service as a Member of Borough Council, you are
advised as follows.
As a Member of Borough Council, you would be considered a "public official"
subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101
et seg., and the Regulations of the Sate Ethics Commission, 51 Pa. Code § 11.1 et seg.
Upon termination of your service as a Member of Borough Council, you would become a
"former public official" subject to Section 1103(g) of the Ethics Act. The former
Stevens, 19-556
eD cem6er 27, 2019
Page 4
governmental body would be Borough Council in its entirety. While applicable, Section
1103(g) of the Ethics Act would restrict "representation" of a "person" before Borough
Council. Section 1103(g) of the Ethics Act would not prohibit you from accepting the
employment position of Borough Manager following termination of your service as a
Member of Borough Council in January 2020.
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 Opin►on will be issued by the Commission.
Any such appeal must be in writing and must be actuallZ received
at the Commission within thin (30) days of the date of this Advice
pursuant to 51 Pa. Code,§ 112(h).. The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or
by FAX transmission f717-787 080fi) . Failure to file such an appeal at
the Commission within thirty (30) days may result in the dismissal of
the appeal.
Sincerely,
� e�-
Robin M. Hittie
Chief Counsel