HomeMy WebLinkAbout99-613 LeshoJames T. Lesho
Attorney At Law
26 Regina Street
Wilkes- Barre, PA 18702
Dear Mr. Lesho:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
September 29, 1999
Re: Former Public Official; Section 1103(a); Section 1103(g); Township
Commissioner; Solicitor; Zoning Board; Planning Commission.
This responds to your letter of August 27, 1999 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ")
presents any restrictions upon employment of a commissioner following termination
of service with a township.
Facts: You are a Commissioner for Hanover Township, Luzerne County,
Pennsylvania and an attorney licensed to practice law in Pennsylvania. On December
31, 1999, you will complete your four year term as an elected official serving as
Township Commissioner. You request an advisory as to whether the Commissioner
Board, composed of seven individuals, may, on January 2, 2000, appoint you Solicitor
to the Commissioner Board, Hanover Township Zoning Board or Planning Commission
of Hanover Township.
You have reviewed the Solicitor's Handbook, published by the Department of
Community Affairs (First Edition, Second Printing, August, 1995). You enclose a copy
of an article regarding the Public Official and Employee Ethics Law and note that
Section 3(g) of that law refers to restrictions on a former public official /public
employee in representing a person before a political body with which he has been
associated for compensation. You request an advisory under the Ethics Act as to
whether those restrictions would apply to you as Solicitor for the political body.
•
D As a Commissioner for Hanover Township, you would be
considered a "public official" subject to the Ethics Act and the Regulations of the State
Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa.Code § 1 1.1.
Section 1 103 of the Ethics Act provides:
Section 1103. Restricted activities.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
99 -613
Lesho, 99 -613
September 29, 1999
Page 2
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a
conflict of interest.
(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.
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term
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.
65 Pa.C.S. §1102.
Turning now to your first question as to whether you may accept an
appointment as Solicitor to any of the above mentioned bodies, you are advised that
Section 1103(a) of the Ethics Act does not prohibit public official /public employees
from having outside business activities or employment; however, the public
official /public employee may not use the authority of his public position -- or
confidential information obtained by being in that position -- for the advancement of
his own private pecuniary benefit or that of a business with which he is associated.
Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section
1103(a) would include: (1) the pursuit of a private business opportunity in the course
of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such
as governmental telephones, postage, staff, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity
as to matters involving the business with which the public official /public employee is
Lesho, 99 -613
September 29, 1999
Page 3
associated in his private capacity, such as the review /selection of its bids or proposals,
Gorman, Order No. 1041.
Under the facts which you have submitted, Section 1 103(a) of the Ethics Act
would not preclude you from being considered or appointed to the position of Solicitor
to the Hanover Township Commissioner Board, Hanover Township Zoning Board or
Planning Commission of Hanover Township. However, that provision of law would
prohibit you from using confidential information or the authority of office to advance
your own appointment or to eliminate any competitors for that position.
Like Section 1103(a), Section 1103(g) does not prohibit a former public
official /public employee from accepting a position of employment. However, Section
1103(g) does restrict the former public official /public employee with regard to
"representing" a "person" before "the governmental body with which he has been
associated ":
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:
65 Pa.C.S. §1102.
Section 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.
The term "Person" is very broadly defined. It includes, inter alia corporations
and other businesses. It also includes the former public employee himself, Confidential
Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name
of the former public official /public employee; (4) participating in any matters before the
Lesho, 99 -613
September 29, 1999
Page 4
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Having discussed 1 103(g), we will now address your second question as to the
restrictions on representation that exist following termination of service as a Hanover
Township Commissioner. In order to answer this question, we must first determine
whether your termination of service as Hanover Township Commissioner and
subsequent appointment as Solicitor to the Hanover Township Commissioner Board,
Hanover Township Zoning Board or Planning Commission of Hanover Township would
classify you as a former public official /public employee subject to the restrictions of
1103(g).
This Commission has dealt with the issue presented herein in Boonin, Opinion
No. 90 -003. Boonin was an uncompensated member of the Philadelphia Gas
Commission (PGC) and also an employee of the City of Philadelphia (City) as an
Assistant to the Finance Director for the Utility and Regulatory Affairs. Boonin was
being considered for an appointment to the position of Chief Executive Officer (CEO)
of the Philadelphia Gas Works (PGW). The question before the Commission was
whether his acceptance of the CEO position and resignation as a member of PGC and
as Assistant to the Finance Director for the Utility and Regulatory Affairs would make
him a former public official /public employee subject to the one year restriction from
representing persons on behalf of PGW before the PGC or the City.
The Commission first determined that the governmental body with which Boonin
was associated was the City. It then found that since Boonin was resigning from two
public positions within the City to accept another appointed position of public
employment within that same governmental body, his actions would not classify him
as a former public official /public employee as he was continuing as a public
official /public employee subject to the controls of his governmental employer, the City.
Applying Boonin to the matter at hand, the governmental body with which you
are associated is the Hanover Township Board of Commissioners. Terminating service
as a Hanover Township Commissioner and accepting an appointment to the position
of Solicitor to the Hanover Township Commissioner Board would constitute a transfer
from a position of public service to a new position of public service within that same
governmental body. In such a case, you would not be considered a former public
official /public employee. As for the Hanover Township Zoning Board or the Planning
Commission of Hanover Township, since neither one is your governmental body,
Section 1103(g) would not prohibit you from becoming Solicitor to either of those
bodies.
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 are the Rules
of Professional Conduct as they apply to your activities as an attorney.
Conclusion: As a Commissioner with Hanover Township, you would be
considered a "public official" as defined in the Public Official and Employee Ethics Act
( "Ethics Act "). Subject to the qualifications and restrictions noted above, the Ethics
Act would not prohibit your appointment as Solicitor to the Hanover Township Board
of Commissioners, the Hanover Township Zoning Board or the Planning Commission
of Hanover Township.
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September 29, 1999
Page 5
Pursuant to Section 1 107(1 1), 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 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.
Final /y, 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.
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.
i cerely,
Vincent J. Kopko
Chief Counsel