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HomeMy WebLinkAbout02-522 WardShawn D. Ward, Esquire 634 Bristol Pike Suite 202 Bensalem, PA 19020 Dear Mr. Ward: ADVICE OF COUNSEL February 26, 2002 02 -522 Re: Former Public Official; Section 1103(g); Township; Former Member of Township Planning Commission; Auditor; Resignation; Accepting Appointment as Solicitor for Township Planning Commission. This responds to your letter of January 23, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a township auditor who is a former member of the township planning commission with regard to accepting an appointment as solicitor for the township planning commission, where such appointment would occur either before or after resigning as auditor. Facts: As a Township Auditor for Newtown Township ( "Township "), you seek an advisory from the State Ethics Commission regarding your prospective appointment as Solicitor for the Township Planning Commission. You have submitted facts, the material portion of which may be fairly summarized as follows. You have previously served as a Member of the Township Planning Commission. You most recently served in that capacity from on or about June 2001 through December 2001. On November 6, 2001, you were elected Township Auditor. You took the oath of office and attended the annual reorganization meeting of the Board of Auditors held January 8, 2002. At that meeting, the Board established the treasurer's and assistant treasurer's bonds and the rate of compensation for assistant roadmasters. As of the submission of your advisory request, your duties as Township Auditor have been limited to the above and you have not received compensation for performing them. On January 7, 2002 —the day before the annual reorganization meeting of the Board of Auditors —the Township Board of Supervisors established the position of Solicitor for the Planning Commission and appointed you to that position. The Ward, 02 -522 February 26, 2002 Page 2 appointment was not effective immediately and was later rescinded pending issuance of this Advice. The question which you pose is whether you may accept the appointment as Solicitor for the Township Planning Commission following resignation from your current public position as Township Auditor. You state that if you would accept the appointment as Solicitor for the Township Planning Commission, your representation would be limited to the Township Planning Commission. You state that in no instance would you represent any other persons before the Township, the Township Planning Commission, or any other boards or committees. You further state that your compensation as Solicitor would ordinarily be billed to the Township against developers' escrow accounts for projects pending within the Township. In limited and infrequent instances involving matters unrelated to developers' projects, you would submit invoices directly to the Township. It is your view that your acceptance of the appointment as Solicitor to the Township Planning Commission, following your resignation as Township Auditor, would not transgress the Ethics Act in that your representation "would be limited to that of the governing body, i.e., Newtown Township through its Planning Commission through an appointment which was made at a duly advertised, open, public meeting of the Board of Supervisors." (January 23, 2002, letter of Ward at 2). However, you seek guidance in this matter from the State Ethics Commission. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. The question which you have posed must be addressed under the "revolving door" provision of the Ethics Act, Section 1103(g), which applies to former "public officials" and former "public employees." 65 Pa.C.S. § 1103(g). As discussed more fully below, Section 1103(g) of the Ethics Act imposes restrictions upon the former public official /public employee during the first year following termination of service in the public position. It should be noted from the outset that the question that you have posed is complex and multifaceted because of the different positions you have held. First, you are a former Member of the Township Planning Commission. You terminated such service in December 2001, less than a year ago. Thus, your inquiry Ward, 02 -522 February 26, 2002 Page 3 presents a preliminary issue as to whether, as a former Member of the Township Planning Commission, you are already a former public official subject to Section 1103(g) of the Ethics Act. Your status as a former Member of the Township Planning Commission cannot be resolved under the facts which you have submitted, because it is not known from the submitted facts whether the Township Planning Commission is purely advisory or actually makes decisions. Members of purely advisory planning commissions are not considered "public officials" as that term is defined in the Ethics Act, because they fall within an exception in the definition: §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 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. 65 Pa.C.S. §1102 (Emphasis added). Since members of planning commissions which fall within the advisory board exception are not considered "public officials," upon termination of such service, they are not considered "former" public officials subject to Section 1103(g). However, members of planning commissions which actually make decisions are considered "public officials" and, upon termination of such service, they do become former public officials subject to Section 1103(g) of the Ethics Act. The preliminary issue as to your status as a former Member of the Township Planning Commission is significant for reasons that shall be made evident below. In addition to being a former Member of the Township Planning Commission, you are currently a Township Auditor. It is clear that in your current position as a Township Auditor, you are 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. Therefore, regardless of your status as a former Member of the Township Planning Commission, upon resignation from the office of Township Auditor, you would become a "former public official" subject to the restrictions of Section 1103(g) of the Ethics Act. Section 1103(g) provides as follows: §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 employee is or has been associated" are specifically defined in the Ethics Act as follows: §1102. Definitions Ward, 02 -522 February 26, 2002 Page 4 "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 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 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 former ublic official /public employee may not be identified on documents submitted to the former governmental body. The former 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. Ward, 02 -522 February 26, 2002 Page 5 Section 1103(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 90 -006; Sharp, Opinion 90- 009 -R. In applying Section 1103(g) to your scenario, the first step is to identify your former governmental body or bodies. As noted above, it is not clear from the submitted facts whether you would already be considered a former public official subject to Section 1103(g) of the Ethics Act as to your prior service as a Member of the Township Planning Commission. If you would be considered a former public official as to that prior service, the Township Planning Commission would already be our former governmental body. In that instance, pursuant to Section 1103(g) of the Ethics Act, you would not be able to contract with the Township Planning Commission as your former governmental body during the one -year period of applicability of Section 1103(g). With few exceptions, contractual arrangements between a former public official/ public employee and the former governmental body are prohibited by Section 1103(g). Exceptions include where: (1) the restrictions do not apply because a former public official /public employee is acting as an impartial arbiter between the former governmental body and others, and hence is not representing himself before his former governmental body, Confidential Opinion, 92 -005; and (2) where the payments to the former public official /public employee are limited to expenses incurred, Confidential Opinion, 97 -012. In the instant matter, if you would be considered a former public official as to your prior service on the Township Planning Commission, none of the above exceptions would apply, and Section 1103(g) would, for the first year following your termination of such service, preclude your provision of contractual services to the Township Planning Commission. See, e.q. Confidential Opinion, 93 -005 (Public employee could not terminate public service and then contract to provide those same services to his former governmental body within one year of termination of service); Confidential Opinion, 97- 008 (Former public official was prohibited from entering into a consulting contract for compensation with his former governmental body within one year of termination of service to provide services as a compensated Special Master and Hearing Examiner). Under this scenario, as a practical matter, you would not be able to serve as a compensated Solicitor to the Township Planning Commission without running afoul of Section 1103(g) of the Ethics Act. However, to the extent that you might not be considered a former public official as to your prior service on the Township Planning Commission, the analysis of your question must proceed to consider your prospective resignation from the position of Township Auditor. Upon resignation from the position of Township Auditor, you would become a former public official subject to Section 1103(g) of the Ethics Act, and your former governmental body would be the Township. For the first year following termination of service as a Township Auditor, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons," including yourself, before the Township with promised or actual compensation. Ward, 02 -522 February 26, 2002 Page 6 It is unclear from the submitted facts whether you plan to accept the appointment as Solicitor to the Planning Commission before or after resigning as Auditor. If you would accept the appointment as Solicitor to the Planning Commission before you would resign as Auditor, Section 1103(g) would not prohibit you from appearing before the Township Board of Supervisors regarding the appointment. On the other hand, if you would resign from your current position as Auditor before you would be appointed Solicitor to the Township Planning Commission, you would be a former public official subject to Section 1103(g) at the time of the appointment, and you would be prohibited from representing yourself before the Township as to the matter of the compensated appointment. Assuming that you would be appointed without running afoul of Section 1103(g) at the time of the appointment, you would inevitably run afoul of Section 1103(g) later in submitting documents to the Township, such as invoices containing your name for your services as Solicitor to the Planning Commission. Such would constitute prohibited representation as noted 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 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. Specifically not addressed herein is the applicability of the Second Class Township Code and the Rules of Professional Conduct. Conclusion: As an Auditor for Newtown Township ( "Township "), 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. Upon resignation from the position as Township Auditor, you would become a "former public official" subject to Section 1103(g) of the Ethics Act. Under the submitted facts, it is not clear whether, as a former Member of the Township Planning Commission, you would already be considered a former ublic official subject to Section 1103(g) of the Ethics Act. If you would be considered a former public official as to your prior service on the Township Planning Commission, Section 1103(g) would, for the first year following your termination of such service, preclude your provision of contractual services to the Township Planning Commission. Under that scenario, as a practical matter, you would not be able to serve as a compensated Solicitor to the Township Planning Commission without running afoul of Section 1103(g) of the Ethics Act. Upon resignation from the position of Township Auditor, your former governmental body would be the Township. For the first year following termination of service as a Township Auditor, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons," including yourself, before the Township with promised or actual compensation. Ward, 02 -522 February 26, 2002 Page 7 Assuming that you would be appointed Solicitor of the Township Planning Commission without running afoul of Section 1103(g) at the time of the appointment, you would inevitably run afoul of Section 1103(g) later in submitting documents to the Township, such as invoices containing your name for your services as Solicitor to the Planning Commission. Such would constitute prohibited representation as noted above. 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 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 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. Sincerely, Vincent J. Dopko Chief Counsel