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HomeMy WebLinkAbout03-579 HenryLowman S. Henry 453 Springlake Road Harrisburg, PA 17112 ADVICE OF COUNSEL July 31, 2003 03 -579 Re: Former Public Official; Section 1103(g); County, Commissioner, Contract, Consulting, County General Authority. Dear Mr. Henry: This responds to your letter of July 15, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any restrictions upon employment of a county commissioner following termination of service with the county. Facts: You seek an advisory as to a contract proposal you have made to perform general marketing consulting to the Dauphin County General Authority ( "Authority "). You were elected in November of 1999 and took office in January of 2000 as a member of the Dauphin County Board of Commissioners. You will not seek re- election and will leave office at the end of December. Although the Board of Commissioners appoints members to the Authority, it is an independent entity, not under the Board's control. The Authority Members serve for fixed length terms but they do not serve at the "pleasure" of the Board of Commissioners. During their terms, the Authority board members exercise exclusive statutory power over Authority business affairs. There will be no appointments to the Authority during your remaining months in office. In a previous letter sent to this Commission by the Authority, reference was made to your having "oversight responsibility of the Authority." You state that you do not have any such regulatory or statutory authority; among the three - member board of commissioners, you were the one informally designated to monitor and keep the other commissioners informed of the activities undertaken by the Authority. Henry, 03 -579 July 31, 2003 Page 2 In that the Authority is a separate entity from Dauphin County, you have made a proposal to be hired as an independent contractor and consultant to provide marketing and public relations services as needed by the Authority. The contemplated activities would not include any lobbying interaction with the government of Dauphin County. It is proposed that the contract would take effect on January 1, 2004, after you leave office as a Dauphin County Commissioner. Because your proposal is before the Authority Board for consideration, the Authority's counsel has sent a letter to this Commission. You request an advisory as to whether you may enter into such a contract with the Authority, consistent with the provisions of the Ethics Act. 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. As a Dauphin County Commissioner, 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. Consequently, upon termination of public service, you would become 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 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 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. Henry, 03 -579 July 31, 2003 Page 3 "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, 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 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 90T006; Sharp, Opinion 90- 009 -R. Henry, 03 -579 July 31, 2003 Page 4 The governmental body with which you would be associated upon termination of public service includes the Board of County Commissioners of Dauphin County and all agencies, bureaus and departments under the County Board of Commissioners, but excludes the judiciary, the independently elected county row offices and the Authority. As to the Authority, the exclusion is based upon your factual statement that the Authority is a governmental body that is independent of the Board of County Commissioners. Your formal governmental body as delineated above will hereinafter be referred to as the "Dauphin County governmental body." Therefore, for the first year after termination of service with Dauphin County, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the "Dauphin County governmental body." As to the question you pose, Section 1103(g) of the Ethics Act would not preclude you from contracting with another governmental body, the Authority, to provide consulting services. However, you may not represent yourself or other persons before your former governmental body, the "Dauphin County governmental body" within one year after termination of service. 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. Conclusion: As a Dauphin County Commissioner, you are a "public official" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with Dauphin County], you would become a "former public official" subject to Section 1103(g) of the Ethics Pict. The former governmental body is the "Dauphin County governmental body" as defined 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. Henry, 03 -579 July 31, 2003 Page 5 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