HomeMy WebLinkAbout05-605 GenardDaniel J. Genard
701 Hillis Street
Youngwood, PA 15697
Dear Mr. Genard:
ADVICE OF COUNSEL
December 14, 2005
05 -605
Re: Former Public Official /Public Employee; Section 1103(g); Retired Borough Director
of Public Works; Simultaneous Service, Temporary Part -Time Authority Manager,
Authority Member and Borough Council Member.
This responds to your letter of November 11, 2005, as supplemented by a
telephone conversation with Commission staff on December 14, 2005, whereby you
request advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., would impose any prohibition or restrictions upon a retiring
borough director of public works who also serves as a municipal authority member and
authority manager, with regard to: (1) being appointed to fill a vacancy on the borough
council; and (2) continuing to serve as a municipal authority member and temporary part -
time authority manager, following his retirement from borough employment.
Facts: You are currently employed as Director of Public Works for the Borough of
Youngwood (Borough), a small municipality in western Pennsylvania with approximately
3200 residents. You are also currently a board member and manager of the local sewage
authority (Authority). You state that the Authority is independent of the Borough, except for
appointments. As manager for the Authority, you supervise two employees, oversee
operations, and comply with an ongoing Department of Environmental Protection mandate.
Currently, Borough employees working for the Authority, including you, receive all
compensation directly from the Borough, with the Authority reimbursing the Borough for
compensation paid for Authority work. However, you state that commencing January 1,
2006, the Borough and the Authority will separately pay employees.
Effective January 1, 2006, you will be retiring from Borough employment. The
Authority has asked you to consider continuing to work for the Authority following your
retirement. Specifically, you have been asked to work as a part -time Authority manager
until the Authority can find a qualified person to fill the manager position.
You state that you are also considering applying for a vacancy on Borough Council
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December 14, 2005
Page 2
that will occur on January 3, 2006. Borough Council has indicated that it will be accepting
names for the vacancy up to December 27, 2005. You state that Borough Council
Members receive compensation in the amount of $130.00 per month. You state that you
are aware that if you are appointed to Borough Council, you must abstain from voting on
any issue that may be a conflict of interest such as appointing new Authority Board
members.
You further inquire about your status as an Authority Board member given that you
would be continuing to serve, on a temporary basis, as the Authority manager during the
transition period. You state that wages should not be problematic because compensation
has already been established by the Board. You further note that as a part -time employee
of the Authority, you would receive no benefits.
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. 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.
It is further noted that pursuant to the same aforesaid Sections of the Ethics Act, an
opinion /advice may be given only as to prospective (future) conduct. If the activity in
question has already occurred, the Commission may not issue an opinion /advice but any
person may then submit a signed and sworn complaint, which will be investigated by the
Commission if there are allegations of Ethics Act violations by a person who is subject to
the Ethics Act.
For purposes of this Advice, it is assumed that in your capacities as Director of
Public Works for the Borough and as Authority Manager, you are a public official /public
employee subject to the Ethics Act. In your capacity as an Authority Board member, you
are a public official subject to the Ethics Act. Thus, for purposes of this Advice, in all three
of the aforesaid capacities you would be subject to the provisions of the Ethics Act. 65
Pa.C.S. § 1102; 51 Pa. Code § 11.1.
Sections 1103(a) and 1103(j) of the Ethics Act apply to public officials and public
employees. These Sections 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
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December 14, 2005
Page 3
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), (j).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." 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 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.
"Authority of office or employment." 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.
65 Pa.C.S. § 1102.
The submitted facts indicate that upon your retirement from Borough employment,
there would be a hiatus before you would be appointed to Borough Council. Therefore,
although you would continue to be a public official /public employee as to the Authority, you
would become a former public official /public employee as to the Borough during the hiatus.
(Cf., Ledebur, Opinion 95 -007; Boonin, Opinion 90 -003).
In the capacity as a former public official /public employee, you would be subject to
Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act restricts a former
public official /public employee with regard to "representing" a "person" before the
governmental body with which he has been associated." Id.
Section 1103(g) of the Ethics Act provides as follows:
§ 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
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December 14, 2005
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year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," "governmental body," 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." 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.
"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, inter alia: (1)
personal appearances before the former governmental body or bodies; (2) attempts to
influence; and (3) lobbying. Popovich, Opinion 89 -005.
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 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
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December 14, 2005
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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.
Based upon the submitted facts, it cannot be determined whether, upon your
retirement from Borough employment, the governmental body with which you would be
deemed to have been associated would be specific Borough department(s) or the Borough
in its entirety. Depending upon the identity of your former governmental body, during the
time that Section 1103(g) would be applicable to you, you might not be able to apply for a
vacancy on Borough Council or to advocate for your appointment to Borough Council
without running afoul of Section 1103(g). To the extent you would submit your name for a
vacancy on Borough Council by the December 27, 2005, deadline, that particular action
would not transgress Section 1103(g) because it would occur prior to Section 1103(g)
becoming applicable to you.
If you would be appointed to fill a vacancy on Borough Council, in your capacity as
a Borough Council Member you would be a public official as to the Borough and you would
in that capacity be subject to the Ethics Act. Upon your becoming a Borough Council
Member, Section 1103(g) of the Ethics Act would cease to apply to you. However, if you
would not resume status as a public official /public employee as to the Borough, Section
1103(g) would apply to restrict you for the full one -year period following your retirement.
At such times as Section 1103(g) would apply to you, such restrictions would
preclude you from representing the Authority, which is a separate governmental body,
before the Borough.
Turning now to the question of simultaneous service, it is initially noted that the
General Assembly has the constitutional power to declare by law which offices are
incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily declared
incompatibility precluding simultaneous service in the positions in question.
Where simultaneous service would place the public official /public employee in a
continual state of conflict, such as where in one position he would be accounting to himself
in another position on a continual basis, there would be an inherent conflict. (See,
McCain, Opinion 02 -009). Where an inherent conflict would exist, it would appear to be
impossible, as a practical matter, for the public official /public employee to function in the
conflicting positions without running afoul of Section 1103(a).
Absent a statutorily - declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position, but in each instance of a conflict of interest, the individual would
be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set
forth above.
In this case, based upon the facts that have been submitted, there does not appear
to be an inherent conflict that would preclude simultaneous service as a Borough Council
Member, Authority Board member and temporary part -time Authority employee. (See,
Swick/Aman, Opinion 91 -006.) Consequently, such simultaneous service would be
permitted within the parameters of Sections 1103(a) and 1103(j), as delineated above.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
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December 14, 2005
Page 6
Conclusion: For purposes of this Advice it has been assumed that as Director of
Public Works for Youngwood Borough and as Authority Manager for the local sewage
authority (Authority), you are a public official /public employee subject to the provisions of
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. As a
board member of the Authority, you are a public official subject to the Ethics Act.
Prospectively, if you would be appointed to fill a vacancy on Borough Council following
your retirement from Borough employment, you would in that capacity be a public official
subject to the Ethics Act.
To the extent there would be a hiatus between your retirement from Borough
employment and your service as an appointed Borough Council Member, during such
hiatus you would be a former public official /public employee subject to the restrictions of
Section 1103(g) as to your former governmental body. Based upon the submitted facts, it
cannot be determined whether your former governmental body would be deemed to be
specific Borough department(s) or the Borough in its entirety. Depending upon the identity
of your former governmental body, during the time that Section 1103(g) would be
applicable to you, you might not be able to apply for a vacancy on Borough Council or to
advocate for your appointment to Borough Council without running afoul of Section
1103(g). To the extent you would submit your name for a vacancy on Borough Council
prior to your retirement, that particular action would not transgress Section 1103(g)
because it would occur prior to Section 1103(g) becoming applicable to you.
At such times as Section 1103(g) would apply to you, such restrictions would
preclude you from representing the Authority, which is a separate governmental body,
before the Borough.
You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as
a Borough Council Member, Authority Board member and temporary part -time Authority
employee, subject to the restrictions, conditions and qualifications set forth above. Lastly,
the propriety of the proposed course of conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(11), this 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 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,
Genard, 05 -605
December 14, 2005
Page 7
Vincent J. Dopko
Chief Counsel