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HomeMy WebLinkAbout00-558 KelchnerRod Kelchner 833 Chestnut Court Marco Island, FL 34145 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL April 6, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -558 Re: Former Public Official; Section 1103(g); President; Mansfield University of Pennsylvania. Dear Mr. Kelchner: This responds to your letter of March 6, 2000 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 president following termination of service with the Mansfield University of Pennsylvania. Facts: On July 1, 1998, you retired as President of Mansfield University of Pennsylvania. You have been invited to join a consulting firm to assist with a project related to the Pennsylvania State System of Higher Education. You ask whether any Commonwealth policy exists that would limit your right to accept the offer of employment from the consulting firm. 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In that Mansfield University of Pennsylvania ( "Mansfield University ") is part of the Pennsylvania State System of Higher Education, in the former capacity as President of Mansfield University, you would be considered a "public official /public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa.Code §11.1. Consequently, upon termination of public service, you became a "former public official /public employee" subject to Section 1 103(g) of the Ethics Act. Kelchner, 00 -558 April 6, 2000 Page 2 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 ": 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). As to the question you have posed, you are advised that the Ethics Act would not prohibit you from accepting the offer to join the consulting firm because the one year prohibition of Section 1103(g) ended on July 1, 1999. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(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 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 that Mansfield University of Pennsylvania ( "Mansfield University ") is part of the Pennsylvania State System of Higher Education, in the former capacity as President of Mansfield University, you would be considered a "public official /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 Mansfield University, you became a "former public official /public employee" subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act would not prohibit you from accepting the offer to join a consulting firm because the one year prohibition of Section 1103(g) ended on July 1, 1999 which was one year after you terminated service. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Kelchner, 00 -558 April 6, 2000 Page 3 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. ince ely, 4 ncent J. Chief Counsel