Loading...
HomeMy WebLinkAbout97-607 LaSotaCalvin J. Webb, II, Esquire Smorto, Persio, Webb & McGill 129 South Center Street PO Box 239 Ebensburg, PA 15931 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 24, 1997 97 -607 Re: Former Public Official; Section 3(g); Borough Council Member; Business with which Associated; Borough Engineer. Dear Mr. Webb: This responds to your letters of August 19, 1997 and August 21, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a former Borough Council Member who is employed by the Borough Engineer with regard to serving in the capacity as the engineering firm's engineer of record with /for the Borough. Facts: As Solicitor for Patton Borough Council, you request an advisory from the State Ethics Commission on behalf of David LaSota (LaSota), a former Borough Council Member. LaSota is employed by L. Robert Kimball and Associates, Inc. ( "Kimball "), an engineering firm, which firm has served as the Patton Borough Engineer for approximately five years and has served the Borough as Municipal Engineer for an extended period of time, other than a 2 -3 year interim period when another engineering firm serviced the Borough. LaSota does not have any ownership interest in Kimball. You state that subsequent to LaSota's resignation from Borough Council on August 18, 1997, Patton Borough Council awarded, through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded, a contract to Kimball for engineering services. You ask whether LaSota may serve in the capacity as Kimball's engineer of record with /for Patton Borough. Discussion: In the former capacity as a Patton Borough Council Member, LaSota would be considered a "public official" subject to the Public Official and Webb /LaSote 97 -607 September 24, 1997 Page 2 Employee Ethics Law ( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. 5402; 51 Pa. Code 511.1. Consequently, to the extent LaSota would be considered a "former" public official /public employee, he would be subject to Section 3(g) of the Public Official and Employee Ethics Law. This Advice shall first address the general parameters of Section 3(g), and then shall address your specific inquiry. While Section 3(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 3. Restricted activities. (g) 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 P.S. §403(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 Law as follows: 65 P.S. 5402. Section 2. 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. Webb /LaSota, 97 -607 September 24, 1997 Page 3 The term "Person" is very broadly defined. It 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 /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 3(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 Law 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 3(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 /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 LaSota has been associated is Patton Borough in its entirety. Therefore, to the extent LaSota would be considered a "former" public official /public employee, Section 3(g) of the Ethics Law would apply and restrict "representation" of "persons" before Patton Borough. Having set forth the general parameters of Section 3(g), your specific inquiry shall now be addressed. We.hb /LaSota 97 -607 September 24, 1997 Page 4 The question of whether LaSota would be considered a "former" public official prohibited by Section 3(g) from serving as Kimball's engineer of record for Patton Borough hinges upon whether Kimball is a public official /public employee with regard to the services that it provides to Patton Borough. In Myers, Opinion No. 96 -004, the State Ethics Commission reviewed the status of L. Robert Kimball and Associates, Inc. ( "Kimball ") with regard to services that it provided under contract to a Second Class Township where the firm had not been designated "the Township Engineer." The Commission ruled that under the unique facts presented by Kimball, it was not within the definition of "public employee" as set forth in the Ethics Law and therefore was not required to file Statements of Financial Interests pursuant to the Ethics Law. In this case, the facts as you have presented them suggest that Kimball may be a public official /public employee with regard to the services that it provides to Patton Borough. However, so as to be thorough, this Advice shall provide an answer to your specific inquiry in either case. If Kimball would in fact be considered a "public official /public employee" as to the services it provides to Patton Borough, LaSota could properly serve as Kimball's engineer of record with /for Patton Borough. The reason is that Kimball and consequently LaSota would be public officials /public employees serving the very same governmental body that LaSota served as a Borough Council Member. See Boonin, Opinion No. 90 -003 (public official /public employee who transfers to a new position of public service within the same governmental body does not become a "former" public official /public employee so as to implicate Section 3(g)). Under such a scenario, however, Kimball, and consequently LaSota, would be subject to the requirement to file Statements of Financial Interests pursuant to the Ethics Law. See, 51 Pa.Code §15.3(h). On the other hand, if Kimball would not be considered a public official /public employee as to the services that it provides to Patton Borough, it would not be subject to the requirement to file Statements of Financial Interests, but Section 3(g) would apply to restrict LaSota from serving as the engineer of record with /for Patton Borough. The fulfillment of the duties of such a position would necessarily cause LaSota as a former public official to engage in prohibited representation of Kimball — the business with which he is associated — before his former governmental body, in contravention of Section 3(g). Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 3(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 3(a) of the Ethics Law. Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /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 Law; 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 Webb/LaSota, 97 -607 September 24, 1997 Page 5 involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: In the former capacity as a Patton Borough Council Member, David LaSota (LaSota) would be considered a "public official" as defined in the Ethics Law. Upon termination of service as a public official /public employee with Patton Borough, LaSota would become a "former" public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body would be Patton Borough. The question of whether LaSota would be considered a "former" public official prohibited by Section 3(g) from serving as Kimball's engineer of record with /for Patton Borough hinges upon the status of the engineering firm of L. Robert Kimball and Associates, Inc. ( "Kimball "), which employs LaSota and provides engineering services to the Borough. Kimball is a business with which LaSota is associated as that term is defined under the Ethics Law. The restrictions as to representation outlined above would have to be followed to the extent LaSota would be considered a "former" public official /public employee subject to Section 3(g). The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law 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 7(11), this 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, providing 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 57 Pa.Code §1.3.2(h 1. 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. erely, wei Vincent 'opko Chief Counsel