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HomeMy WebLinkAbout24-569 Finnigan 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 October 25, 2024 To the Requester: Jay Finnigan 24-569 Dear Mr. Finnigan: This responds to your emails received September 27, 2024, and October 9, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, if you would resign from your position as a Member of the Northampton County Tax Collection Committee (“Tax Collection Committee”), the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would permit you to serve as the Executive Director of the Tax Collection Committee in thecapacity of an independent contractor to the Tax Collection Committee. Brief Answer: NO. If you would resign from your position as a Member of the Tax Collection Committee, you would become a “former public official” subject to the post- termination of service restrictions of Section 1103(g) of the Ethics Act. During the first year following termination of your service with the Tax Collection Committee, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve “representing” a “person” — including but not limited to yourself — before your “formergovernmental body,” the Tax Collection Committee. Section 1103(g) would prohibit you from serving as the Executive Director of the Tax Collection Committee in the capacity of an independent contractor to the Tax Collection Committee as such activity would constitute prohibited representation of a person — yourself — before the Tax Collection Committee. Finnigan, 24-569 October 25, 2024 Page 2 Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. On January 2, 2024, you retired from your employment as the Township Manager for Hanover Township (“Township”), located in Northampton County (“County”), Pennsylvania. You have submitted a copy of a position description for your former position with the Township, which document is incorporated herein by reference. You are currently serving as a Member of the Tax Collection Committee, which was created and organized under Act 32 of 2008, 53 P.S. § 6924.501 et seq. The Tax Collection Committee is looking to engage a business, corporation, or sole proprietor to serve as its Executive Director. The position would require approximately 50 to 60 hours of work per year. The duties of the position would include preparing agendas for and attending Tax Collection Committee meetings, managing contracts, interacting with various parties, assisting with tax appeals, and coordinating professional services as needed by the Tax Collection Committee. The business, corporation, or sole proprietor would provide the Executive Director services in the capacity of an independent contractor to the Tax Collection Committee. You seek guidance as to whether, if you would resign from your position as a Member of the Tax Collection Committee, the Ethics Act would permit you to serve as the Executive Director of the Tax Collection Committee in the capacity of an independent contractor to the Tax Collection Committee. 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 post-termination of service/employment restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees. Section 1103(g) restricts a former public official/public employee from “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. Finnigan, 24-569 October 25, 2024 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 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. During the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) generally would prohibit a former public official/public employee from contracting with the former governmental body (see, Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005) or providing consulting services constituting representation before the former governmental body (see, Claycomb, Opinion 14-004; Schrempf, Opinion 13-004). 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 Finnigan, 24-569 October 25, 2024 Page 4 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 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; Sharp, Opinion 90-009-R. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of the Tax Collection Committee, you are a “public official” subject to the provisions of the Ethics Act. Upon termination of your service as a Member of the Tax Collection Committee, you would become a “former public official” subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your service as a Member of the Tax Collection Committee would be the Tax Collection Committee. For the first year following termination of your service with the Tax Collection Committee, Section 1103(g) of the Ethics Act would apply and restrict you from “representing” a “person” — including but not limited to yourself — before the Tax Collection Committee. The restrictions as to representation outlined above must be followed. You are advised that during the first year following termination of your service as a Member of the Tax Collection Committee, Section 1103(g) of the Ethics Act would prohibit you from serving as the Executive Director of the Tax Collection Committee in the capacity of an independent contractor to the Tax Collection Committee. This is because such activity would constitute prohibited representation of a person — yourself — before your former governmental Finnigan, 24-569 October 25, 2024 Page 5 body, the Tax Collection Committee. See, Shaub, supra; Claycomb, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. 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 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 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