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HomeMy WebLinkAbout06-528 Archbald BoroughJames J. O'Connor, Esquire Abrahamsen, Moran & Conaboy, P.C. 1006 Pittston Avenue Scranton, PA 18505 ADVICE OF COUNSEL March 14, 2006 06 -528 Re: Former Public Official; Section 1103(g); Borough Council Member; Accepting Appointment to a Compensated Position With Borough. Dear Mr. O'Connor: This responds to your letter of February 6, 2006 by which you requested 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 borough council member following termination of service with the borough. Facts: As Solicitor to the Borough of Archbald ( "Borough "), you have been authorized by a former Borough Council Member to seek an advisory regarding the post - employment restrictions that apply to the him under the Ethics Act. You have submitted facts that may be fairly summarized as follows. A former Borough Council Member whose term expired on December 31, 2005, decided not to seek re- election in the last municipal election in November 2005. In January of 2006, Borough Council desired to appoint the former Council Member to a position overseeing the Borough Public Works Department. The Borough would like to compensate the former Council Member for this position. However, you state that you have instructed the Council not to pay the former Council Member for his work until the State Ethics Commission issues an advisory on this matter. You state that the former Council Member would be taking an appointed position with the Borough for compensation. You further state that the former Council Member would not be acting on behalf of any other person and would not be dealing with matters before the governmental body other than assisting the governmental body with the Borough Department of Public Welfare. O'Connor, 06 -528 March 14, 2006 Page 2 Based upon the foregoing facts, you ask whether the former Borough Council Member may accept appointment to a compensated position overseeing the Borough Public Works Department. 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 former Borough Council Member on whose behalf you seek this advisory would, in his former capacity, 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, the Council Member 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. "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. O'Connor, 06 -528 March 14, 2006 Page 3 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. The governmental body with which the former Council Member is associated is the Borough Council in its entirety. Ga liardo, Order 1369. Therefore, for the first year after termination of service with Borough ouncil, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Borough Council. As to the specific question that you have posed, you are advised that the Commission has determined that Section 1103(g) of the Ethics Act does not prohibit the rehiring of the former public employee provided that a true public employment relationship exists. See, McGlathery, Opinion 00 -004; Long, Opinion 97 -010; Confidential Opinion, 93 -005. Based upon the foregoing Commission precedents, O'Connor, 06 -528 March 14, 2006 Page 4 Section 1103(g) of the Ethics Act would not prohibit the former Borough Council Member from accepting appointment to serve in a compensated position overseeing the Borough Public Works Department conditioned upon the assumption that a true public employment relationship would exist. An example of a relationship that would not be true public employment relationship would include that of an independent contractor or a consultant for the municipality. 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: In the former capacity as a Council Member for Archbald Borough ( "Borough "), the former Council Member on whose behalf you seek this advisory 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 Borough Council, the former Council Member became a `former public official" subject to Section 1103(g) of the Ethics Act. The former governmental body is Borough Council in its entirety. The former Council Member may be hired by the Borough within one year of termination of service to oversee the Borough Public Works Department provided a true public employment relationship exists. 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 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 O'Connor, 06 -528 March 14, 2006 Page 5 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