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Home My WebLink About24-531 DeVito PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: www.ethics.pa.gov TOLL FREE: 1-800-932-0936 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 18, 2024 To the Requester: Leo V. DeVito, Jr. 24-531 Dear Mr. DeVito: This responds to your letter dated March 22, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether the post-termination of service/employment restrictions of Section 1103(g) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(g), would prohibit an individual serving as a township commissioner from becoming employed as the township manager if the individual would resign from the township board of commissioners. Brief Answer: NO. Section 1103(g) of the Ethics Act would not prohibit the individual from becoming employed as the township manager if the individual would resign from the township board of commissioners. Facts: Youhave been authorized to request an advisory from the Commission on behalf of an individual (“the Individual”) who is a Commissioner for the Township of Pocono (“the Township”), located in Monroe County, Pennsylvania. You have submitted facts that may be fairly summarized as follows. The Township employs a Township Manager pursuant to Section 56301-A of the First Class Township Code, 53 P.S. § 55101 et. seq., and Article 28 of the Township Code of Ordinances. The position of Township Manager is currently vacant as the prior Township Manager resigned effective April 5, 2024, to enter employment in the private sector. DeVito, 24-531 April 18, 2024 Page 2 The Individual is interested in becoming employed as the Township Manager and has expressed intent to resign from the Township Board of Commissioners if appointed as the Township Manager. Although Section 28-10 of the Township Code of Ordinances provides, in pertinent part, that “No Commissioner shall be appointed as Township Manager during his or her term for which he or she shall have been elected nor within one year after the expiration of his or her term,” the Township Board of Commissioners will likely consider amending the Ordinance to delete this provision. The narrow question that is posed by your advisory request is whether the post-termination of service/employment restrictions of Section 1103(g) of the Ethics Act would prohibit the Individual from becoming employed as the Township Manager if the individual would resign from the Township Board of Commissioners. Discussion/Conclusion: 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. As a Township Commissioner, the Individual is a “public official” subject to the Ethics Act. Consequently, upon termination of service as a Township Commissioner, the Individual 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 for 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 DeVito, 24-531 April 18, 2024 Page 3 “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 anyactivity. The governmental body with which the Individual would be deemed to have been associated upon termination of service as a Township Commissioner would be the Township Board of Commissioners. Accordingly, while applicable, Section 1103(g) of the Ethics Act would restrict “representation” of a “person” before the Township Board of Commissioners. However, per Commission precedents, Section 1103(g) of the Ethics Act does not prohibit the appointment/rehiring of a former public official/public employee to a public office or position of public employment with the former governmental body. Confidential Opinion, 93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 and 97-010-R; McGlathery, Opinion 00- 004. Therefore, you are advised that Section 1103(g) of the Ethics Act would not prohibitthe Individual from accepting the employment position of Township Manager if the Individual would resign from the Township Board of Commissioners. 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. 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 DeVito, 24-531 April 18, 2024 Page 4 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 appealthe 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 receivedat 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