Loading...
HomeMy WebLinkAbout20-003 ValentinePHON E: 717,,783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILUNG WEBSITE: WM,eNcssagenv 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 OPINION OF THE COMMISS"ZION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Michael A. Schwartz Shelley Y. Simms DATE DECIDED: 12/1/20 DATE MAILED: 12,/2/20 20-003 To the Requester: Keith A. Valentine Dear Mr. Valentine: This Opinion is issued in response to your letter dated October 26, 2020, and your email submissions of November 4, 2020„ and November 9, 2020, by which you requested an advisory opinion from the Pennsylvania State Ethics Commission ("Commission"). I. ISSUE: Whether an individual who is a Pennsvivania Certified Sewage Enforcement Officer ("SEO"), and who previously provided S 0 services to three particular townships (the "Townships") in Pennsylvania as an employee of a private engineering firm ("Firm") with which he is no longer associated, would be considered a "former public official" of the Townships, and therefore subject to the restrictions of Section 11 03(g) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(g), where: (1) each Township a&pointed the Firm as SEO, with one Township naming the individual as "the specific officer„ in its approved motion; (2) an SEO is an "official" of the local agency(ies) served, 35 P.S. § 750!f; and (3) I blaw, where a local agency —such as a township —contracts i with a company or corporation for SEO services, it has a duty to adopt by resolution a list of the individual SEOs employed by the company or corporation to perform SEO services, 35 P.S. § 750.8(b)(2.1). 11. FACTUAL BASIS FOR DETERMINATION: You request an advisory opinion from this Commission based upon submitted facts, the material portion of which may be summarized as follows. You are a Pennsylvania Certified Sewage Enforcement Officer ("SEO"). Prior to June 2020 you were employed by a private engineering firm named "Barry Isett & Associates, Inc." (the "Firm"). The Firm provides municipal engineering and code services to numerous municipalities throughout eastern Pennsylvania. As an SEO Valentine, 20-003 ec�emFer 2, 2020 Page 2 employed by the Firm, you assisted in fulfilling municipal obligations in accordance with the Firm's contracts, and in particular, you were tasked with witnessing soil testing, reviewing designs and issuing permits to repair or construct onlot sewage Pg. osal systems in compliance with the Pennsylvania Sewage Facilities Act, 35 P.S. 1 et sue., and 25 Pa. Code Chapters 71, 72, and 73. While employed by the Firm, you provided SEO services to Allen Township located in Northampton County, Pennsylvania, Penn Forest Township located in Carbon County, Pennsylvania, and Salem Township located in Luzerne County, Pennsylvania, which Townships are also referred to herein collectively as the "Townships." You provided the aforesaid SEO services to the Townships as an employee of the Firm. You state that you are no longer associated with the Firm or the Townships. Although you are no longer associated with the Firm or the Townships, you represent several clients that wish to conduct business in one or more of the Townships. You request an advisory opinion as to whether the Ethics Act would impose restrictions upon you with regard to providing the following services in contract with private entities within the Townships: (1) soils testing, sewage facilities planning, and design, which services you state require coordination with focal municipalities and their SEOs; (2) certain soil science investigations, which services you state cannot be performed by local SEOs who are not Certified Professional Soil Scientists; (3) stormwater infiltration evaluations to produce soil data and infiltration rates for design engineers; and (4) onlot wastewater treatment system inspections for private property owners, property managers, property sellers, prospective property buyers, realtors and lenders, which do not require contact or coordination with municipalities. You have submitted copies of the January 6, 2020 Reorganization Meeting minutes from each of the Townships, which provide, in pertinent part, as follows: Allen Township: Mr. Behler made a motion to appoint Barry Isset and Associates, Inc as primary and alternate SEO with the specific officer: Keith Valentine, and that the Township Manager continue the system of escrow and non-refundable fees for all percolation work and permits pursuant to Resolution #2020- 04; seconded by Mr. Frack. On the motion, by roll call vote, all supervisors present voted yes. Janua 6 2020 Reorganization Meeting Minutes of the Allen Township Board of Supervisors, at 3. Penn Forest Township: MOTION made by Supervisor Cross, Second by Supervisor Bartulovich to appoint Barry Isett and Associates Inc. as the Third Party Building Code Official, Bui ing nspector, Commercial Building Inspector, Building Inspector, Zoning Officer, Assistant Zoning Officer, Code Enforcement Officer, Sewage Officer and Water Enforcement Officer for 2020 .... ROLL CALL: JK-Yes; SL-Yes; CB -Yes; TC-Yes; WR-absent MOTION Pass Meetinq Minutes of the rvisors Valentine, 20-003 ecceri B r 2, 2020 Page 3 Salem Township: Barry Isett & Associates was re -appointed as Township Engineer and Sewage Enforcement Officer, and Flood Plain Administrator. Janua 6 2020 Reorganization Meetin Minutes of the Salem Township Board of Supervisors, at 3. By letter dated November 16, 2020, you were notified of the date, time and location of the public meeting at which your request would be considered. We administratively note that the Pennsylvania Sewage Facilities Act defines the term "sewage enforcement officer" as "the official of the local a enc who issues and reviews permit applications and conducts such investigations arild inspections as are necessary to implement the act and the rules and regulations thereunder." 35 P.S. § 750.2 (Emphasis added). The term "local agency" is defined to include, inter alia, a municipality, and the term "municipality" is defined to include, inter alia, a townslhip. Id. On its face, the Pennsylvania Sewage Facilities Act requires townships and other municipalities to either employ SEO(s) or contract with individuals, firms or corporations to perform SEO services. 35 P.S. § 750.8(b). Where a township contracts with a company or corporation for SEO services, the Pennsylvania Sewage Facilities Act provides that the township has a duty to adopt by resolution a list of the individual SEOs employed by the company or corporation to provide SEO services: (b) Each local a ency in addition to the powers and duties conferred upon it by existing law shall have the power and the duty: (2.1) To adopt by resolution a list of individuals who are sewage enforcement officers employed by companies or corporations under contract with the local agency to perform the services of sewage enforcement officers. 35 P.S. § 750.8(b)(2.1). III. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. The Ethics Act defines the terms "public official," "governmental body," and "political subdivision" as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or Judicial branch of this Commonwealth or any political subdivision thereof, provided Valentine, 20-003 eI5 ce—m— er 2, 2020 Page 4 that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative orjudicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. The first portion of the Ethics Act's definition of the term "public official" provides that a public official is a person (defined to include, inter alia, an individual, business, corporation or firm, 65 Pa.C.S. § 1102 which is: (1) elected_y the public; (2) elected or appointed by a governmental body; or 3) an appointed official in the executive, legislative or fudicial branch of the Commonweal h of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a pu i� coo icial subJ"ect #a the Ethics Act is established, unless the exception for members of purely advisory boards lacking authority to expend public funds, other than reimbursement for personal expense, is applicable. Eiben, Opinion 04-002. The Regulations of the State Ethics Commission provide that the term ".public official" generally includes "[p]ersons appointed to positions designated as officers by the Commonwealth or its political subdivisions." 51 Pa. Code § 11.1 (definition of "public official," (iii)(D)). By law, an SEO is an "official" of the local agency —in this case, each of the Townships —served. Although all of the Townships appointed the Firm as SEO during their January 6, 2020, Reorganization Meetings, all of the Townships were required by law to also adopt by resolution a list of the individual SEOs employed by the Firm to perform SEO services. 35 P.S. § 750.8(b)(2.1). For purposes of the Ethics Act, the Townships' a pprovaI of you as an SEO to perform work for them constituted appointing you as an SO. The Allen Township Board of Supervisors named you as the 'specific officer" in its approved motion to appoint the Firm, and it can be presumed that the Boards of Supervisors of Penn Forest Township and Salem Township likewise acted at an appropriate time and in an appropriate manner to so approve/designate you to perform SEO services for them, in conformity with the Pennsylvania Sewage Facilities Act, 35 P.S. § 750.8(b)(2.1). We conclude that in your former capacities as an SEO for each of the Townships, you would be considered a 'public official" subject to the provisions of the Ethics Act and the Regulations of this Commission. Therefore, upon termination of service with each of the Townships, you became a "former public official" subject to the restrictions of Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act restricts a former public official/public employee with regard to "representing" a "person" before "the governmental body with which he has been associated' : Valentine, 20-003 ec6 em zFer 2, 2020 Page 5 § 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 bodv with which he has been associated for one year after he eaves that o y. 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: § 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. 65 Pa.C.S. § 1102. The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employeeFimself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in pany activity. Examples of prohibited representation include, but are not limited to, personal appearances before the former governmental body(ies), attempts to influence, participating in any matters before the former governmental) body(ies) as to acting on behalf of a person, being identified on documents submitted to the former governmental body ies , and acting in such a way as to make known to the former governmental body�i the representation of, or work for, a new employer — in this instance, a client. See, Confidential Opinion, 17-007; E. dley, Opinion 17-002. Section 1103(g) only restricts the former public official/public employee with regard to representation before his former governmental body(ies). The former public official/public employee is not restricted as to representation before other agencies or entities. The governmental bodies with which you would be deemed to have been associated upon termination of your service with each of the Townships would include the Township Board of Supervisors and all other governmental bodies within the Township as to which you performed services as SEO. With respect to each of the Townships, the restrictions of Section 1103(g) of the Ethics Act would apply for one year Valentine, 20-003 ec�mFe- r 2, 2020 Page 6 following termination of your service as an SEO. Therefore, for the first year following termination of your service as SEO for a Township, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the Township governmental body(ies) with which you had been associated. During the one-year period of applicability of Section 1103(g), you would be prohibited from performing for private clients services that would involve you engaging in representation before any of your former governmental bodies as set forth above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: Based upon the submitted facts that: (1) you are a Pennsylvania Certified Sewage Enforcement Officer ("SEO"); �2) prior to June 2020 you were employed by a private engineering firm named "Barry sett & Associates, Inc." (the "Firm"); (3) the Firm provides municipal engineering and code services to numerous municipalities throughout eastern Pennsylvania; (4) as an SEO employed by the Firm, you assisted in fulfilling municipal obligations in accordance with the Firm, contracts, and in particular, you were tasked with witnessing soil testing, reviewing designs and issuing permits to repair or construct onlot sewage dispposal systems in compliance with the Pennsylvania Sewage Facilities Act, 35 P.S. § 750.1 et seg., and 25 Pa. Code Chapters 71, 72, and 73; (5) while employed by the Firm, you provided SEO services to Allen Township located in Northampton County, Pennsylvania, Penn Forest Township located in Carbon County, Pennsylvania, and Salem Township located in Luzerne County, Pennsylvania (which Townships are also referred to herein collectively as the "Townships"); (6) each of the Townships appointed the Firm as SEO, with one of the Townships namingg you as "the specific officer" in its approved motion; (7) you provided the aforesaid SEO services to the Townships as an employee of the Firm; �8) you are no longer associated with the Firm or the Townships; (9) you represent severaclients that wish to conduct business in one or more of the Townships; and (10) you are interested in providing the following services in contract with private entities within the Townships: (a) soils testing, sewage facilities planning, and design, which services you state require coordination with local municipalities and their SEOs; (b) certain soil science investigations, which services you state cannot be performed by local SEOs who are not Certified Professional Soil Scientists; (c) stormwater infiltration evaluations to produce soil data and infiltration rates for design engineers; and (d) onlot wastewater treatment system inspections for private property owners, property managers, property sellers, prospective property buyers, reactors and lenders, which do not require contact or coordination with municipalities, you are advised as follows. In your former capacities as an SEO for each of the Townships, you would be considered a "public official" subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of this Commission, 51 Pa. Code § 11.1 et seg. Upon termination of service with each of the Townships, you became a "former public official" subject to the restrictions of Section 1103(g) of the Ethics Act. The governmental bodies with which you would be deemed to have been associated upon termination of your service with each of the Townships would include the Township Board of Supervisors and all other governmental bodies within the Township as to which you performed services as SEO. With respect to each of the Townships, the restrictions of Section 1103(g)of the Ethics Act would apply for one year following termination of your service as an SEO. Therefore, for the first year following termination of your service as SEO for a Township, Section 1103(g) of the Ethics Act Valentine, 20-003 ec�l3er 2, 2020 Page 7 would apply and restrict "representation" of a "person" before the Township governmental body(ies) with which you had been associated. During the one-year period of applicability of Section 1103(g), you would be prohibited from performing for private clients services that would involve you engaging in representation before any of your former governmental bodies as set forth above. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 1107(10), the person who acts in good faith on this O inion issued to him shall not be subject to criminal or civil penalties for so acting providedpthe material facts are as stated in the request. This letter is a public record and will be made available as such. By tpe Commission, Ni holas A. ColafeIla Chair