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HomeMy WebLinkAbout26-551 Paul PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 11, 2026 To the Requester: Gary A. Paul 26-551 Dear Mr. Paul: This responds to your letter dated July 28, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issues presented below: Issues: (1) Whether, as a Director on the Executive Board of the Cambria-Somerset Council of Governments, you would be considered a “public official” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Brief Answer: YES. Based upon the submitted facts, as a Director on the Executive Board of the Cambria-Somerset Council of Governments, you would be considered a “public official” subject to the provisions of the Ethics Act. (2) Whether, as a Member of the Board of Directors of Highland Regional Park, you would be considered a “public official” subject to the provisions of the Ethics Act. Brief Answer: NO. Based upon the submitted facts, as a Member of the Board of Directors of Highland Regional Park, you would not be considered a “public official” subject to the provisions of the Ethics Act. Facts: You request an advisory from the Commission based upon the following submitted facts. You served as a Supervisor for Richland Township (“Township”) for 30 years. You were not elected to another term of office as a Township Supervisor in the November 2025 general Paul, 26-551 August 11, 2026 Page 2 election. During your final term as a Township Supervisor, you served as President of the Executive Board of the Cambria-Somerset Council of Governments (“the COG”). You have submitted a copy of the Bylaws of the COG, which document is incorporated herein by reference. You note that Article VI - Policy Bodies, Section 3(a)(6) of the COG Bylaws provides that “At the expiration of his, her term, the President of the executive board shall become a director.” Directors on the COG Executive Board receive no compensation or benefits for their service. You state that a participating municipality of the COG has asserted that because you are no longer an elected official of the Township, you are prohibited from serving in any governmental capacity for two years in either a paid or unpaid capacity. You note that Article 6, Section 2(a) of the COG Bylaws provides that Directors “may be selected from the delegates or alternate delegates \[of the COG\] who are either elected officials of the member municipalities or appointed officials of the member municipalities….” You assert that the COG Bylaws do not require that a Director be a currently serving elected official nor do they impose any disqualification based on the loss of an election. Article II, Purpose, of the COG Bylaws provides that the purpose of the COG is to “foster a cooperative effort to resolve problems, determine policies, and formulate plans that are common and regional.” Article II further provides that to serve this purpose, the COG shall, in pertinent part, “\[f\]urnish general and technical aid to member municipalities, prepare and administer grant and aid programs, and other services as they direct or request by resolution, to promote and accomplish Council approved agreements, policies or plans.” Article VI of the COG Bylaws empowers the COG Executive Board to “employ a staff of professional, technical, or clerical personnel as may be required to administer the affairs of the COG including an executive director.” Following the end of your service as a Township Supervisor, the Township Board of Supervisors appointed you to serve as the Township’s representative on the Board of Directors of Highland Regional Park. You state that you do not receive compensation for your service and that this position is advisory in nature. Based upon the above submitted facts, you pose the following questions: (1) Whether Pennsylvania law imposes a two-year prohibition on elected officials with regard to serving in any uncompensated governmental or intergovernmental capacity after leaving office; (2) Whether the automatic succession clause in the COG Bylaws regarding the President of the COG Executive Board serving as a Director following the expiration of the President’s term conflicts with any provision of the Ethics Act or another Pennsylvania statute; (3) Whether your service as a Director on the COG Executive Board would constitute holding “public office” under the Ethics Act given that the position is not compensated and is in your view advisory in nature; (4) Whether your appointment to the uncompensated position on the Highland Regional Park Board of Directors raises any concerns under the Ethics Act; and Paul, 26-551 August 11, 2026 Page 3 (5)Whether you maylawfully assume the uncompensated position of a Director on the COG Executive Board as required by the COG Bylaws. 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 considering the questions that you have posed, the two main issues to be addressed are: (1) whether the post-termination of service/employment restrictions of Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon you with regard to serving either as a Director on the COG Executive Board or as a Member of the Highland Regional Park Board of Directors; and (2) whether, either as a Director on the COG Executive Board or as a Member of the Highland Regional Park Board of Directors, you would be considered a “public official” subject to the provisions of the Ethics Act. With respect to the first main issue, the post-termination of service/employment restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees. While Section 1103(g) does not prohibit a former public official/public employee from accepting a position with an employer or a governmental entity, 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 Paul, 26-551 August 11, 2026 Page 4 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. With respect to the second main issue, the term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public official" and set forth additional criteria that are used to determine whether the advisory board exception applies, which criteria include, in pertinent part: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. Paul, 26-551 August 11, 2026 Page 5 51 Pa. Code § 11.1. In applying the Ethics Act’s definition of the term “public official,” the first portion of the definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002. Conclusion: In your former capacity as a Township Supervisor, you were a “public official” subject to the Ethics Act. Consequently, upon termination of your service as a Township Supervisor, you became a “former public official” subject to Section 1103(g) of the Ethics Act. The governmental body with which you were associated while serving as a Township Supervisor was the Township Board of Supervisors. For the first year following termination of your service as a Township Supervisor, Section 1103(g) of the Ethics Act would apply and restrict you from “representing” a “person”— including but not limited to a governmental entity — with promised or actual compensation before the Township Board of Supervisors. Although the Ethics Act imposes a two-year prohibition upon former executive-level State employees with regard to engaging in certain activities following termination of employment with the Commonwealth (see, Section 1103(i) of the Ethics Act, 65 Pa.C.S. § 1103(i)), the only prohibition that the Ethics Act imposes specifically upon a former public official is the Section 1103(g) one-year prohibition against engaging in representation, with promised or actual compensation, before the former governmental body. Because Section 1103(g) does not prohibit a former public officialfrom accepting any type of position, Section 1103(g) would not prohibit you from assuming the position of Director on the COG Executive Board. Furthermore, because the positions of Director on the COG Executive Board and Member of the Highland Regional Park Board of Directorsare uncompensated positions, Section 1103(g) would not prohibit you from “representing” the COG or the Highland Regional Park Board of Directors before the Township Board of Supervisors if you would be called upon to do so as a result of your service in those positions. It is noted that the Commission lacks the statutory jurisdiction to provide legal guidance as to whether provisions of the COG Bylaws may be in conflict with laws other than the Ethics Act. The Commission further lacks the statutory jurisdiction to interpret the COG Bylaws to determine whether you would meet the eligibility requirements under the COG Bylaws to serve as a Director on the COG Executive Board. Therefore, this advisory is necessarily limited to addressing your questions regarding the COG Bylaws from the perspective of the Ethics Act. In this respect, you are advised that the automatic succession clause in the COG Bylaws regarding the President of the COG Executive Board serving as a Director following the expiration of the President’s term does not conflict with any provision of the Ethics Act. You are further advised that neither Section 1103(g) of the Ethics Act nor any other provision of the Ethics Act would prohibit you from serving as a Director on the COG Executive Board. Paul,26-551 August 11, 2026 Page 6 If you would serve as a Director on the COG Executive Board, you would in that capacity be a “public official” subject to the Ethics Act. This is because you would not fall within the statutory exclusion for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. Although the COG may perform a number ofadvisory functions as set forth in the COG Bylaws, for purposes of applying the Ethics Act, the COG goes beyond advisory functions. Specifically, pursuant to Article II of the COG Bylaws, the COG has the authority to prepare and administer grant and aid programs, which would constitute the authority to exercise a basic power of government. The COG further has the authority to expend public funds to employ a staff of professional, technical, or clerical personnel, including an executive director. However, in your capacity as a Member of the Highland Regional Park Board of Directors, you are not a “public official” subject to the Ethics Act. This conclusion is based upon the submitted factsthat the duties of the Highland Regional Park Board of Directors are advisory in natureand that Members of the Highland Regional Park Board of Directors are not compensated for their service. The propriety of the proposed conduct only has 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. 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