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HomeMy WebLinkAbout94-626 EwaldMaryellyn K. Ewald HC 62 Box 39 Long Pond, PA 18334 94 -626 Re: Former Public Official; Section 3(g); Township; Sewage Enforcement Officer; Vacancy Board Member; Alternate Sewage Enforcement Officer; Sewage Clients. Dear Mrs. Ewald: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 17, 1994 This responds to your letters of October 7, 1994 and October 13, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of an (alternate) sewage enforcement officer or vacancy board member following termination of service with the township. Facts: Following your husband's resignation as Sewage Enforcement Officer (SEO) from the Township on August 17, 1994, you inquire as to whether he may in the township do set up and perform percolation tests, arrange for a backhoe to dig a test pit and do designs for individuals. You ask about the restrictions and length of time of such restrictions following resignation as to performing such services for individuals within the Township. After noting that your husband was appointed to the Township Vacancy Board in January, 1994 for a period of one year, you ask whether the appointment's continuance after his resignation date as SEO has any bearing on his performance of services for individuals, and whether the one year period runs from August 17, 1994 or December 31, 1994. As to your service in the Township, you have served as Clerk for the Township /Secretary to the Sewage Office and also as the Alternate Sewage Enforcement Officer (ASEO), with your services as Clerk ending on February 28, 1994 and your services as Secretary to the Sewage Office ending on August 1, 1994. Though you are no longer an employee of the Township, you have never been formally notified or relieved as ASEO. You ask from what date you would be able to set up and perform percolation tests for individuals within Ewald, Maryellyn R., 94 -626 November 17, 1994 Page 2 the Township and from what date would you be able to arrange for backhoe to dig tests pits or to do designs for individuals. During your service with the Township as Clerk /Secretary and ASEO, you did not perform nor receive payments for any inspections as ASEO. You ask whether you would be permitted to perform such services and if so within what time frame. You and your husband have operated a sewage percolation pit and design business since 1975 for individuals outside the Township. You ask whether you would be restricted from operating or continuing the business which would now include the Township. By letter of October 13, 1994, your spouse George Ewald seeks advice as to whether he may arrange pit inspections, arrange and perform percolation tests and do and submit septic designs within the Township from which he resigned for no fee to individuals requesting such performance of services noting that many elderly people have extremely tight fixed incomes in the Township with such services sometimes being a hardship for those people. Discussion: As a SEO, ASEO, and Vacancy Board Member for Township, you and your husband are to be considered "public officials" 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. 5402; 51 Pa. Code 511.1. Consequently, upon termination of public service, you and your husband would become "former public officials" 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 for one year after he leaves that body. Initially, to answer your request the governmental body with which you and your husband were associated while working with the Township 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: Ewald, Maryellyn R., 94 -626 November 17, 1994 Page 3 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 and your husband were associated upon termination of public service would be the Township. 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 in Sharp, Opinion 90- 009 -R, it was determined that a former legislative 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 the Township, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Township. 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 control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the 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. Ewald, Maryellyn R., 94 -626 November 17, 1994 Page 4 Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 81901, it is clear that the governmental body with which you and your husband were associated is the Township. 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 contract proposals which are signed by or contain the name of a former public official or public employee. The Commission, in P000vich, 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 by or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; Ewald, Maryellyn K., 94 -626 November 17, 1994 Page 5 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 which existed prior to termination of public service. Therefore, within the first year after termination of service, you and your husband should not engage in the type of activity outlined above. You and your husband may assist in the preparation of any documents presented to the Township. However, you or your husband may not be identified on documents submitted to the Township. You or your husband may also counsel any person regarding that person's appearance before the Township. Once again, however, the activity in this respect should not be revealed to the Township. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Township to secure information which is available to the general public. 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. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. In Confidential Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. Furthermore, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything of Ewald, Maryellyn R., 94 -626 November 17, 1994 Page 6 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. We will now address the specific questions that you have posed. As to the activities that you contemplated regarding setting up and performing percolation tests, arranging for backhoes to dig test pits and to do designs for individuals within the Township, Section 3(g) of the Ethics Law does not prohibit such private business activities following termination of service. However, as noted above, Section 3(g) would prohibit your representation of these clients before the Township which would occur if you would submit any type of documentation or sewage permit applications or approval of requests that would contain your name. In addition, Section 3(g) would preclude you or your husband from appearing before the Township on behalf of clients for whom you performed certain septic related services. The above restrictions as noted above only relate to your former governmental body, that is, the Township in which you held these positions but it does not extend to any other municipalities. Further, if such services are performed for no promised or actual compensation (fee), than the restriction of Section 3(g) noted above would not apply. Finally, in terms of the length of time in which the one year prohibition of 3(j) would apply, the one year restriction runs from the last day of service with the governmental body for a period of one year. Thus, if your last day of service was August 1, 1994, the one year prohibition would run from the period of August 1, 1994 to August 1, 1995. As to the case of your husband, the one year prohibition would run from December 31, 1994 to December 31, 1995 based upon your submitted facts. The fact that he resigned as SEO on August 17, 1994 does not start the one year period running since your husband continued with the Township in another position as Township Vacancy Board Member and hence the one year period would begin to run from the point of termination of service with the Township which would be December 31, 1994. 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. Conclusion: As a Township SEO, ASEO and Vacancy Board Member, you and your husband are to be considered "public officials" as defined in the Ethics Law. Upon termination of service with the Township, you and your husband would become "former public officials" subject to Section 3(g) of the Ethics Law. The former governmental Ewald, Maryellyn X., 94 -626 November 17, 1994 Page 7 body is the Township. The restrictions as to representation 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 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. such. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa .Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAa transmission (717 Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. erely, Vincent . Dopko Chief Counsel