HomeMy WebLinkAbout05-521 ConfidentialADVICE OF COUNSEL
March 17, 2005
05 -521
Re: Former Public Official; Section 1103(g); Member; County Planning Commission.
This responds to your letter of February 11, 2005, by which you requested a
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., presents any restrictions upon employment of a member of a
county planning commission following termination of service with the county planning
commission.
Facts: As a former member of the A County Planning Commission ( "Planning
ommission "), you seek a confidential advisory from the State Ethics Commission. You
have submitted facts, which may be fairly summarized as follows.
You state that the Planning Commission is a nine - member "advisory" board to
the A County Planning Office, and indirectly, to the County Commissioners. The
Planning Commission has the authority to approve major subdivision and land
developments under the provisions of the A County Subdivision and Land Development
Ordinance, which is in effect in [number] of the County's [number] municipalities.
The County Commissioners appoint the members of the Planning Commission.
Planning Commission Members do not receive compensation.
Your term as a Planning Commission Member expired on [date]. Prior to serving
on the Planning Commission, you worked for the B for almost 20 ears (1979 to 1999).
You then served as C in the D for over four years (1999 to 2003). You retired from A
County Government on [date], and became a candidate for elective office in 2004.
You pose the following questions:
1 Whether you are prohibited from representing an employer before the County
Planning Commission for one year following the completion of your term on the
Planning Commission;
Confidential Advice, 05 -521
March 17, 2005
Page 2
2. Whether you may comment on matters that are before the County Planning
Commission as an individual during the one year period following the completion
of your term on the Planning Commission;
3. Given that A County government is composed of approximately 35 agencies
including Courts, Public Safety, Prison, and Human Services, whether you are
prohibited from working for any agency of A County government as an employee,
volunteer, or consultant during 2005, as for example, a private sector employer
or nonprofit organization (as an employee, volunteer or consultant) which
contracts with A County Government; and
4. Whether you are prohibited from working for any municipality or regional agency
located within A County as an employee, volunteer, or consultant during 2005.
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.
In your former capacity as a Member of the A County Planning Commission, you
would be considered 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 became 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
"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.
Confidential Advice, 05 -521
March 17, 2005
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, constitutes 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 ublic
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.
Confidential Advice, 05 -521
March 17, 2005
Page 4
The governmental body with which you were associated upon termination of
public service is the A County Planning Commission in its entirety. Therefore, for the
first year after termination of service with the A County Planning Commission, Section
1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before
the A County Planning Commission.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific
inquiries shall now be addressed.
In response to your first question, Section 1103(g) of the Ethics Act would
prohibit you from representing an employer before the A County Planning Commission
during the one year period of restricted activity.
In response to your second question, Section 1103(g) would not prohibit you
from commenting on matters before the A County Planning Commission as an
individual during the one year period, conditioned upon the assumption that you would
not be engaging in such activity for compensation.
In response to your third and fourth questions, Section 1103(g) would not prohibit
you from working for any private or public body other than the A County Planning
Commission as an employee, volunteer or consultant during the one year period.
However, to the extent you would, in your new position, engage in prohibited
representation before your former governmental body, the A County Planning
Commission, as outlined above, you would transgress Section 1103(g) of the Ethics Act.
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 former member of the A County Planning Commission, 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 the
A County Planning Commission, you became a "former public official" subject to Section
1103(g) of the Ethics Act. The former governmental body is the A County Planning
Commission 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
Confidential Advice, 05 -521
March 17, 2005
Page 5
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