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Home My WebLink About95-609 KrushinskiDear Mr. Krushinski: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 19, 1995 Michael J. Krushinski, Esquire Herlands, Krushinski & Rothenberg PO Box 269 Scranton, PA 18501 95 -609 Re: Former Public Official; Section 3(g); Board Member; Solicitor. This responds to your letter of September 12, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law restricts a member of a municipal authority with regard to serving as the board's solicitor following his resignation from the board. Facts: You have been serving as a Member of the Dickson City Municipal Recreation Authority since its inception in 1995. You have been asked to serve as Solicitor for the Authority. You are contemplating resigning your position as a Member of the Board in order to serve in the capacity of Solicitor. You ask whether the Ethics Law would preclude such service. Discussion: As a Dickson City Municipal Recreation Authority ( DCMRA) Board Member, you are 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 State Ethics Commission. 65 P.S. §402; 51 Pa. Code §11.1. Ordinarily, upon termination of public service, a DCMRA Board Member would become a "former public official" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) Krushinski, Michael J., Esquire, 95 -609 October 19, 1995 Page 2 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. For a detailed discussion of the Section 3 (g) prohibitions associated with the terms "person" and "represent," See Ledebur, Opinion 95 -007. However, in this case, the Section 3(g) restrictions would not apply based upon the holding of the Commission in Boonin, Opinion 90 -003. In the cited case, the Commission held that the transfer of a public official /employee from one position within a governmental body to another position in that governmental body did not implicate Section 3(g) of the Ethics Law because the public official /employee in that instance did not become a former public official /employee. Therefore, Section 3(g) of the Ethics Law would not apply if you resign as a Board Member of DCMRA to accept the position of DCMRA Solicitor. However, under Section 3(a) of the Ethics Law, you could not participate or vote as a Board Member on your appointment as Solicitor, and you would have to observe the disclosure requirements of Section 3 (j) of the Ethics Law. These provisions are set forth below. Section 3(a) provides: 65 P.S. §403(a). Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The term "conflict" or "conflict of interest" is defined 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 Krushinski, Michael J., Esquire, 95 -609 October 19, 1995 Page 3 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. 65 P.S. §402. Section 3(j) provides: 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 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 Krushinski, Michael J., Esquire, 95 -609 October 19, 1995 Page 4 65 P.S. §403(j). made as otherwise provided herein. 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 monetary value based upon the understanding that the vote, official action, or judgment 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. 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 Municipality Authorities Act. Conclusion: As a Dickson City Municipal Recreation Authority Board Member, you are to be considered a "public official" as defined in the Ethics Law. Section 3(g) of the Ethics Law would not apply if you resign as a Board Member to accept the position of Board Solicitor, in that you would not become a former public official subject to the prohibitions of Section 3(g). However, under Section 3(a), you could not participate and /or vote on your appointment and you would be required to observe the disclosure requirements of Section 3(j) to the extent applicable. The propriety of the proposed conduct has only been addressed under the Ethics Law. 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. such. 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. Krushinski, Michael J., Esquire, 95 -609 October 19, 1995 Page 5 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this 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. Sincerely, t v:ts„.4.\ Vincent J. Dopko Chief Counsel