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HomeMy WebLinkAbout04-552 AthertonJames T. Atherton 105 Plymouth Avenue Wilkes- Barre, PA 18702 Dear Mr. Atherton: ADVICE OF COUNSEL May 21, 2004 04 -552 Re: Former Public Official; Section 1103(g); Board Member; School District; Assistant Principal. This responds to your letter of April 22, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., presents any restrictions upon a school board member following termination of service with the school board in applying for the position of assistant principal with the school district. Facts: You were elected to the Wilkes -Barre Area School Board in 1995 and re- eTected in 1999. Since you did not seek a third term, your term of office expired in December 2003. You have served in the past as a member of the State Board of Governor's and as a Trustee at Bloomsburg University. In the April 2004 meeting, the school board accepted the resignation of an assistant principal. You have been a guidance counselor for 15 years and have your principal certification. The Pennsylvania School Code outlines what a sitting member of a board must do if interested in applying for a position in the district. Given that you are no longer a member of the board, you believe that you are not precluded from applying for that position. You spoke to Representative Kevin Blaum for his view on your submitting an application for the position vis -a -vis a conflict under the Ethics Act. He expressed his opinion that nothing in the Act should prevent you from being an applicant but suggested that you request an advisory. 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 Atherton, 04 -552 May21, 2004 Page 2 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 member of the Wilkes -Barre Area School Board, you would be considered a public official" subject to the Ethics Act and the Re ulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code 11.1. Consequently, upon termination of puhfic service, you became a "former pubic 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. "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; Atherton, 04 -552 May21, 2004 Page 3 (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 90=006; Sharp, Opinion 90- 009 -R. The governmental body with which you were associated upon termination of public service is the Wilkes -Barre Area School District in its entirety. Therefore, for the first year after termination of service with the Wilkes -Barre Area School District, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Wilkes -Barre Area School District. On the specific question you pose, the Commission has held that the prohibition of Section 1103(g) of the Ethics Act not only applies to public officials /public employees leaving governmental service to work in the private sector, but also to situations where the former public official /public employee obtains employment with another governmental body. See, Ledebur, Opinion 95 -07. See also, Arnica, Advice 00 -516. However, the Commission has interpreted Section 1103(g) to allow a former public official /public employee to obtain employment with the same former governmental body within one year of termination of service. See, Long, Opinion 97- 010. Accordingly, as a former school board member of the Wilc�es -Barre Area School District, Section 1103(g) of the Ethics Act would not preclude you for applying for the position of assistant principal with the district within one year of termination of service. If you apply for the assistant principal position and obtain employment, you would become a public employee subject to the provisions of the Ethics Act. Atherton, 04 -552 May21, 2004 Page 4 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 member of the Wilkes -Barre Area School Board, you would be considered 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 Wilkes -Barre Area School District, you became a "former public official" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Wilkes -Barre Area School District in its entirety. 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. 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