HomeMy WebLinkAbout00-503 KoerberSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
January 18, 2000
Dwight L. Koerber, Jr., Esquire
110 North Second Street
P.O. Box 1320 00 -503
Clearfield, PA 16830
Re: Former Public Official; Section 1103(g); Director; School Board; Participation
in Vote to Hire Attorney; Assisting Attorney Hired by School Board.
Dear Mr. Koerber:
This responds to your letter of December 15, 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 a former school board director as to assisting an
attorney hired by the school board to oversee an appraisal of property under purta
legislation when the school director participated in the vote to hire said attorney.
Facts: You are a former School Board Director for the Clearfield Area School
Board, having not been re- elected in the past November election. While you were a
School Board Member, you participated in a unanimous 9 -0 vote to hire an attorney
to oversee an appraisal of property under PURTA legislation. You state that you do
not know and have never met the attorney who was hired.
You ask whether the Ethics Act would impose any restrictions upon you as to
assisting the attorney who was hired by the School Board in his duties related to the
appraisal of property under PURTA legislation.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), 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.
In the former capacity as a School Board Director of the Clearfield Area School
Board, 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
§11.1.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
Koerber, 00 -503
January 18, 2000
Page 2
Consequently, upon termination of public service, you became a "former public
official" subject to Section 1103(g) of the Ethics Act.
While Section 1 103(g) does not prohibit a former public official /public employee
from accepting a position of employment, it 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. §1102.
Section 1103, Restricted activities.
(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.
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:
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
Koerber, 00 -503
January 18, 2000
Page 3
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits 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 pertain to a contract that existed prior
to termination of public service, Shay, Opinion 91 -012. However, if such a pre- existing
contract does not involve the unit where the former public employee worked, the name
of the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. Abrams /Webster,
Opinion 95 -011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public
official /public employee may not be identified on documents submitted to the former
governmental body. The public official /public employee may also counsel any person
regarding that person's appearance before his former governmental body. Once again,
however, the activity in this respect should not be revealed to the former governmental
body. The Ethics Act would not prohibit or preclude making general informational
inquiries to the former governmental body to secure information which is available to
the general public, but 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.
Section 1 103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official /public employee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you have been associated upon termination
of public service is the Clearfield Area School Board in its entirety. Therefore, for the
first year after termination of your service with the Clearfield Area School Board,
Section 1103(g) of the Ethics Act would apply and restrict "representation" of
"persons" before the Clearfield Area School Board.
Turning to the question you have posed, the Ethics Act would not prohibit you
from assisting the attorney hired by the School Board in his duties of overseeing the
appraisal of property under PURTA legislation to the extent that your activities would
not result in prohibited representation as discussed above.
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
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 1 103(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
Koerber, 00 -503
January 18, 2000
Page 4
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 a School Board Director for the Clearfield
Area School Board, you would be considered a "public official" as defined in the Public
Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon
termination of service with Clearfield Area School Board, you would become a "former
public official" subject to Section 1 103(g) of the Ethics Act. The former governmental
body is the Clearfield Area School Board. The restrictions as to representation outlined
above must be followed. The propriety of the proposed conduct has only been
addressed under the Ethics Act.
Further, should service be terminated, as outlined above, 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 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.
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
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 Dopko
Chief Counsel bY144