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HomeMy WebLinkAbout22-506 TaicletPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL January 27, 2022 To the Requester: Mr. W.L. "Luke" Taiclet Dear Mr. Taiclet: 22-506 This responds to your correspondence received January 14, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the general issue presented below: Issue: 1. Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you with regard to performing work as a consultant for Big Beaver Borough (Borough), Beaver County, Pennsylvania, following termination of your service as a Member of Borough Council? Brief Answer: YES. During the first year following termination of your service as a Member of Borough Council, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to yourself as a consultant and/or a consulting business formed by you and your wife before Borough Council. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: Taidei 22-506 January 27, 2022 Page 2 On May 4, 2021, you were appointed to fill the remaining eight months of the unexpired term of a Member of Borough Council. You did not run for election to Borough Council in November 2021, and you served as a Member of Borough Council until January 3, 2022. Several years prior to your appointment to Borough Council, you and your wife formed a consulting business named "AXL Consulting, LLU (the Consulting Business). The Consulting Business was modeled around areas of business expertise that you and your wife gained from employment experiences prior to retirement. You state that during your time on Borough Council, you were able to draw on that expertise and help the Borough in improving financial and administrative operations. As your term on Borough Council was nearing its completion, you were approached by Members of Borough Council to see if you would be interested in helping them to further develop and refine operations as a consultant. The question that is presented by your advisory request is whether you would be permitted to perform consulting work for the Borough under a consulting contract or multiple work product specific contracts via the Consulting Business. 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, the 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 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 material facts. In the former capacity as a Member of Borough Council, you were a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission. Consequently, upon termination of your service as a Member of Borough Council, you became a "former public official" subject to Section 1103(g) of the Ethics Act. While Section 1103(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": § 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. Taidei 22-506 January 27, 2022 Page 3 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 official/public employee himself, 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 aM 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; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89-005; Edley, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. 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 if the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing contract does not involve the unit where a former public employee Taidei 22-506 January 27, 2022 Page 4 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 public 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. 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; ShaM, Opinion 90-009-R. The governmental body with which you are deemed to have been associated upon termination of your service as a Member of Borough Council is Borough Council in its entirety. Therefore, for the first year following termination of your service on Borough Council, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to yourself as a consultant and/or the Consulting Business before Borough Council. You are advised that while the restrictions contained within Section 1103(g) of the Ethics Act would be applicable, it would appear to be impossible, as a practical matter, for you to perform consulting work for the Borough under a consulting contract or multiple work product specific contracts via the Consulting Business without violating Section 1103(g) of the Ethics Act. 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. Conclusion: In your former capacity as a Member of Borough Council, you were a "public official" subject to the Ethics Act, 65 Pa.C.S. § 1101 et sec., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et SeMc . Upon termination of your service on Borough Council, you became a "former public official" subject to the restrictions of Section 1103(g) of the Ethics Act. Your former governmental body is Borough Council in its entirety. For the first year following termination of your service on Borough Council, Section 1103(g) of the Ethics Act Taidei 22-506 January 27, 2022 Page 5 would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to yourself as a consultant and/or the Consulting Business before Borough Council. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. RespectfullyaCounse