Loading...
HomeMy WebLinkAbout23-542 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL July 26, 2023 To the Requester: 23-542 This responds to your letter dated June 26, 2023, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issues presented below: Issues: (1) Whether et seq., would impose prohibitions or restrictions upon an individual serving as an \[Officer\] for the \[Political Subdivision\], who is also serving as a Member of the Board of Directors of the \[Entity\], with regard to seeking employment as the \[Position Title\] of the \[Entity\]. Brief Answer: NO. The \[Entity\] and it is a business with which the individual is associated in her capacity as a Director. The Ethics Act, which restricts the conduct of the individual in her capacity as a public official (i.e., a \[Political Subdivision Officer\]) and not in her capacity as a Member of the Board of Directors of the \[Entity\], would not prohibit or restrict the individual from seeking employment as the \[Position Title\] of the \[Entity\]. (2) Whether the Ethics Act would impose restrictions upon the individual with regard to being employed as the \[Position Title\] of the \[Entity\] following termination of her service as a \[Political Subdivision Officer\]. Brief Answer: YES. Although the post-termination of service restrictions of Section 1103(g) of the Ethics Act would not prohibit the individual from being employed as the \[Position Title\] of the \[Entity\] following her public service, during the first year following termination of the indservice as a \[Political Subdivision Officer\], Section 1103(g) Confidential Advice, 23-542 July 26, 2023 Page 2 of the Ethics Act would apply and restrict the individual from engaging in any activity that including but not limited to the \[Entity\] before her the \[Political Subdivision Governmental Body\]. Facts: You request a confidential advisory from the Commission based upon submitted facts that may be fairly summarized as follows. On \[Date\], the \[Public Official\] of the \[Judicial Body\] appointed you as an \[Officer\] for the \[Political Subdivision\] to complete the term of office of a \[Political Subdivision Officer\] who resigned to take another position with the \[Political Subdivision\]. Your term of office will expire in \[Month, Year\]. You represent the \[Political Subdivision Governmental Body\] as a voting Member of the \[Entity\]. It is administratively noted that the \[Entity\] is a 501(c)(3) corporation. On \[Date\], you became aware that the \[Entity\] Board would be starting the process to recruit a new \[Position Title\]. The search for a new \[Position Title\] would be conducted by a special \[Entity\] \[Committee 1\] of which you are not a member. You would like to pursue the opportunity to be a candidate for the \[Position Title\] position. It is anticipated that the new \[Position Title\] would begin employment with the \[Entity\] in \[Month, Year\], which coincides with the expiration of your term of office as a \[Political Subdivision Officer\]. Based upon the above submitted facts, the following questions are posed by your advisory request: (1) Whether the Ethics Act would impose prohibitions or restrictions upon you with regard to applying for the position of \[Position Title\] of the \[Entity\] or continuing to serve on the \[Entity\] Board while an applicant for such position; (2) If you would be permitted to continue to serve on the \[Entity\] Board while an applicant for the position of \[Position Title\] of the \[Entity\], whether it would be appropriate for you to recuse yourself from all discussions of the \[Entity\] \[Committee 1\] involving the hiring process by the \[Entity\] \[Committee 2\] or the \[Entity\] Board; and (3) Whether the Ethics Act would impose prohibitions or restrictions upon you with regard to being employed as the \[Position Title\] of the \[Entity\] following termination of your service as a \[Political Subdivision Officer\]. Confidential Advice, 23-542 July 26, 2023 Page 3 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 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 requester has truthfully disclosed all of the material facts. The term "public official" is defined in the Ethics Act as follows: § 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. Governmental body. Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. Political subdivision. Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Confidential Advice, 23-542 July 26, 2023 Page 4 Commonwealth. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. -- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), 1103(j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary Confidential Advice, 23-542 July 26, 2023 Page 5 benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. ,/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. -profit corporation. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 1103(g) of the Ethics Act imposes post-termination of service/employment restrictions upon former public officials/public employees: Confidential Advice, 23-542 July 26, 2023 Page 6 § 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). 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. The term represent 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. Confidential Advice, 23-542 July 26, 2023 Page 7 Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a \[Political Subdivision Officer\], you are a public official subject to the provisions of the Ethics Act. Although the submitted facts provide that you are serving on the \[Entity\] Board as \[Political Subdivision Officers\], the \[Entity\] thics Act. Instead, the \[Entity\] is As such, in your capacity as a Member of the \[Entity\] Board Act. Rather, the \[Entity\] is a business with which you are associated in your capacity as a Director. Section 1103(a) of the Ethics Act imposes restrictions upon you in your capacity as a public official (i.e., a \[Political Subdivision Officer\]), rather than upon you in your capacity as a Member of the \[Entity\] Board. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in your capacity as a \[Political Subdivision Officer\] in matters that would financially impact you or the \[Entity\]. Section 1103(a) of the Ethics Act would not prohibit you from applying for the position of \[Position Title\] of the \[Entity\] while you are serving as a \[Political Subdivision Officer\]. Because Section 1103(a) of the Ethics Act does not apply to you in your capacity as a Member of the \[Entity\] Board, Section 1103(a) would not prohibit you from remaining on the \[Entity\] Board while an applicant for the position of \[Position Title\] or restrict your conduct as a Member of the \[Entity\] Board with respect to matters involving the hiring of a \[Position Title\]. Upon termination of your service as a \[Political Subdivision Officer\], you would become governmental body with which you would be deemed to have been associated upon termination of your service as a \[Political Subdivision Officer\] would be the \[Political Subdivision Governmental Body\]. Therefore, for the first year following termination of your service as a \[Political Subdivision Officer\], Section 1103(g) of the Ethics Act would prohibit you from representing a \[Political Subdivision Governmental Body\]. Section 1103(g) of the Ethics Act would not prohibit you from being employed as the \[Position Title\] of the \[Entity\] following termination of your service as a \[Political Subdivision Officer\]. However, during the first year following termination of such service, Section 1103(g) of the Ethics Act would restrict you from performing any job duties as the \[Position Title\] of the \[Entity\] that would involve prohibited representation before the \[Political Subdivision Governmental Body\]. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 Confidential Advice, 23-542 July 26, 2023 Page 8 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. Respectfully, Bridget K. Guilfoyle Chief Counsel