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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. Lesho, 99 -613 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