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HomeMy WebLinkAbout99-646-S ConfidentialSTATE 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 February 16, 2000 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -646 -S Re: Former Public Employee; Section 1103(g); Deputy Director; B County; C Department; D Airport; Loaned Executive; License Agreement; Magazine. This responds to your letter of January 4, 2000 by which you requested a supplemental confidential advisory from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of a Deputy Director following termination of service with the C Department, D Airport. Facts: In response to your letter of November 26, 1999 requesting an advisory, Advice of Counsel 99 -646 was issued to you on December 28, 1999, which Advice is incorporated herein by reference. On January 4, 2000, you submitted a request for a supplemental advisory on behalf of A, the former Deputy Director of the B County C Department, D Airport. In your January 4, 2000 letter, you stated that all of the assets of D Airport have now been transferred by B County to the F Authority, an independent governing body created under the Municipal Authorities Act. Under the transfer agreement between B County and the F Authority, the F Authority has also assumed all of B County's obligations relating to D Airport. One of the obligations that the F Authority has assumed is the Letter of Intent executed by the B County C Department and A. On February 9, 2000, inquiry was made as to why the submitted facts in your November 26, 1999 related that the parties to the License Agreement would be A and D Airport, rather than the F Authority given that, at the time A executed the Letter of Intent, he must have been aware of the impending transfer. You responded by letter dated February 14, 2000 wherein you stated that you were aware that the F Authority was in its formative stages, but at the time you submitted your request for an advisory, you were not completely aware of its exact status. You stated that it was not until January 5, 2000 that you were advised by the Assistant County Solicitor that the transfer of assets and assumption of obligations by the F Authority had actually occurred. Confidential Advice, 99 -646 -S February 16, 2000 Page 2 Given the above additional facts, you request a confidential supplemental advisory. Discussion: It is initially noted that pursuant to Section 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (111, advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material facts. As previously noted, as Deputy Director of the B County C Department, D Airport, A would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of public service, A would become a "former public employee" subject to Section 1103(g) of the Ethics Act. For administrative economy, the restrictions of Section 1103(g) outlined in Advice of Counsel 99 -646 will not be repeated but are incorporated herein by reference. As you were previously advised, the governmental body with which A would be associated upon termination of public service is B County in its entirety, including but not limited to D Airport. Therefore, for the first year after termination of A's service with B County, Section 1 103(g) of the Ethics Act would apply and restrict "representation" of "persons" before B County. In Advice of Counsel 99 -646, it was noted that the Ethics Act would not per se prohibit A from publishing an airport magazine following termination of service with B County. However, it was also noted that given the fact that the Letter of Intent and /or License Agreement would involve certain rights, duties and obligations that would necessitate extensive interaction with B County, it would appear impossible as a practical matter for A to take various actions under the agreement(s) without transgressing Section 1103(g) of the Ethics Act. In fulfilling his contractual obligations, A would be acting on his own behalf and would necessarily engage in prohibited representation before his former governmental body. See, Stanisic, Opinion No. 98 -004. You now state that all of the assets and properties of the D Airport have been transferred by B County to the F Authority. You further state that F Authority has assumed all of the obligations of B County relating to the airport, including the Letter of Intent executed by A and D Airport. Based upon the assumption that the F Authority is not part of B County, as well as upon your specific factual representations, Section 1103(g) would not prohibit A from entering into a License Agreement with F Authority to publish an airport magazine provided that A would not engage in prohibited representation before B County as outlined in Advice of Counsel 99 -646. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no Confidential Advice, 99 -646 -S February 16; 2000 Page 3 use of authority of office 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 to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. Conclusion: In the former capacity as Deputy Director of the B County C Department, D Airport, A would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with the B County C Department, A would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is B County in its entirety, including but not limited to D Airport. The restrictions as to representation outlined in Advice of Counsel 99 -646 must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined in Advice of Counsel 99 -646, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 1107(11), 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. 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. 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 Confidential Advice, 99 -646 -S February 16, 2000 Page 4 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. rely, Vincent J. Dopko Chief Counsel ‘001,11,