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HomeMy WebLinkAbout88-512 PhillipMr. Andrew Guidon, Jr. and Ms. Audrey Phillip Borough of Freemansburg 600 Monroe Street Freemansburg, PA 18017 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 17, 1988 ADVICE OF COUNSEL 88 -512 Re: Former Public Official, Borough Councilmember, Borough Administrative Assistant Dear Mr. Guidon and Ms. Phillip: This responds to your letter of January 7, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a former member of borough council from applying for the position as administrative assistant to the borough council. Facts: You state that at the direction of borough council and specifically Audrey Phillip, who was a member of borough council on which she recently concluded her term, you ask whether there would be any conflict of interest on her part in serving in the position of administrative assistant to the borough council. You state that the term of Audrey Phillip concluded as of January - 4, 1988 and that the borough council is desirous of appointing her to that position for which she has been deemed to be the most qualified person. You conclude by requesting advice as to the propriety of the conduct of Audrey Phillip under the Ethics Act. Discussion: As a councilmember for Freemansburg Borough, Audrey Phillip is a "public official" as that term is defined in the Ethics Act. See Rider, 490 -R; 65 P.S. §402; 51 Pa. Code §1.1. As such,'her conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to her. Mr. Andrew Guidon, Jr. and Ms. Audrey Phillip February 17, 19.88 Page 2 Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes, 85 -010. As to whether the Ethics Act would restrict or prohibit a former borough councilmember from also serving as a administrative assistant, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the State Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of Borough Code. Therefore, Section 3(a) of the Ethics Act would not prohibit Audrey Phillip from serving in the position as administrative assistant. It is assumed for purposes of this advice that Audrey Phillip did not use her public office by either participating or lobbying in terms of either making the determination that she was the most qualified person or that she would receive the position subject to a subsequent pro forma approval. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is Mr. Andrew Guidon, Jr. and Ms. Audrey Phillip February 17, 1988 Page 3 associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Reference must also be made to Section 3(b) of the Ethics Act in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which must be observed, one must neither offer nor accept anything of value on the understanding or with the intention that one's official judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without 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(e). Generally, under this provision of law, a former public official would be prohibited from representing a person or entity before his governmental body fora period of one year after such employment is terminated. .In , relation to this restriction, the Commission has determined that when such ,a former official or employee obtains employment with another governmental body or on a different level of government, the above restriction would not be applicable. Hagen Opinion, 84 -019; Pinto Oinion, 84 -021. The Commission has also determined that, when a transfers positions within a public official or employee governmental employee or official. governmental Cohen b 0 ineon, 7 -045. In light of these decisions, Sect would not p Phillips from accepting the position of administrative assistant. This especially so in light of the fact that she, in her position of employment as admi- nistrative assistant, would still be representing the borough rather than any private interest. Mr. Andrew Guidon, Jr. and Ms. Audrey Phillip February 17, 1988 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, regulation, or ordinance or other code of conduct other than the Ethics Act has not been considered. Conclusion: As a member of borough council, Audrey Phillip is a public official subject to the provisions of the Ethics Act. The Ethics Act would not prohibit Audrey Phillip, upon the completion of her term as borough councilmember, from serving as an administrative assistant to the borough council subject to the limitations as noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9 ii ) this Advice is enforcement proceeding initiated by the Commission, and evidence defense i n a conduct in any other civil or criminal nce of good faith e disclosed truthfully all the material facts and ncommittedithetactseccomplaineds 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 ou have a m challenge same, you may request that the full Commission review thisaAdvice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission w i l l be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant" to 51 Pa. Code 2.12. SiAcerely, Vincent:J..Dopko General Counsel