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HomeMy WebLinkAbout06-532-CL BorgerJohn B. Dunn Monroe County Solicitor Administrative Center One Quaker Plaza Stroudsburg, PA 18360 -2192 ADVICE OF COUNSEL May 2, 2006 06 -532 -C L Re: Former Public Employee; Section 1103(g); Administrative Officer 2; Pennsylvania Department of State; Clarification; Advice of Counsel, 06 -532. Dear Mr. Dunn: This responds to your letter of March 30, 2006 by which you requested a clarifying 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 an Administrative Officer 2 following termination of service with the Pennsylvania Department of State. Facts: By letter dated January 27, 2006, you initially sought an advisory from the tate Ethics Commission. In response to your request, Dunn, Advice of Counsel, 06- 532 was issued to you on March 23, 2006, which advice is incorporated herein by reference. On March 30, 2006, you submitted a request for clarification wherein you asked whether Gail Borger ( "Borger "), a former Administrative Officer 2 with the Department of State, and a current employee of Monroe County ( "County "), would be prohibited from having any contact with the Department of State, such that she would be prohibited from undertaking activities such as: (1) assisting in the preparation of documents presented to the former governmental body; (2) counseling any person regarding that person's appearance before the governmental body; and (3) making general informational inquiries to the former governmental body to secure information that is available to the general public so long as it is not done in an effort to directly influence the former governmental body; or whether Borger would be prohibited from having contact with the Department of State pertaining to the HAVA requirements, including HAVA inquiries pertaining to HAVA information that would be generally available to the public. Dunn /Borger, 06- 532 -CL May 2, 2006 Page 2 You state that you anticipate that Borger would be in contact with the Department of State but only on an informational basis, particularly with inquiries that would call for informational responses, the content of which would or should be available to the general public. Discussion: In that Dunn, Advice of Counsel, 06 -532 is incorporated herein by reference, the quotations, citations and commentary as to the Ethics Act set forth within that Advice will not be repeated here. In response to your request for clarification, as noted in the base advice, 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. Specifically, with respect to inquiries made to the former governmental body, you are advised that the Ethics Act would not preclude or prohibit Borger from making general informational inquiries to the Department of State, including HAVA inquiries, to secure information that is available to the general public so long as Borger's activities would not be done in an effort to indirectly influence the Department of State or to otherwise make known to the Department of State the representation of, or work for the County, her new employer. Thus, if inquiries made by Borger to the Department of State would go beyond making general informational inquiries to secure information that would be available to the general public, such would be prohibited under Section 1103(g) of the Ethics Act. Conditioned upon your factual representation that that Borger would be in contact with the Department of State but only on an informational basis, particularly with inquiries that would call for informational responses, the content of which would or should be available to the general public, such inquiries would not be prohibited under the Ethics Act so long as Borger's activities would not be done in an effort to indirectly influence the Department of State or to otherwise make known to the Department of State the representation of, or work for the County, her new employer. 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: Dunn, Advice of Counsel, 06 -532, is incorporated herein by reference. The Ethics Act would not preclude or prohibit Borger from making general informational inquiries to the Department of State, including HAVA inquiries, to secure information that is available to the general public so long as Borger's activities would not be done in an effort to indirectly influence the Department of State or to otherwise make known to the Department of State the representation of, or work for the County, her new employer. Conditioned upon your factual representation that that Borger would be in contact with the Department of State but only on an informational basis, particularly with inquiries that would call for informational responses, the content of which would or should be available to the general public, such inquiries would not be prohibited under the Ethics Act so long as Borger's activities would not be done in an effort to indirectly influence the Department of State or to otherwise make known to the Department of State the representation of, or work for the County, her new employer. Dunn /Borger, 06- 532 -CL May 2, 2006 Page 3 Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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