HomeMy WebLinkAbout06-580 GreenleeConstance Greenlee
616 Lincoln Avenue
Bentleyville, PA 15314
Dear Ms. Greenlee:
ADVICE OF COUNSEL
August 29, 2006
06 -580
This responds to your letters of July 21, 2006 and July 29, 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 prohibition or restrictions upon an accountant who
retired from employment with an authority board from being appointed to serve as an
authority board member.
Facts: You retired from your employment with the Pigeon Creek Sanitary
Authority ( "Authority ") on January 31, 2006. You collect a pension from the Authority
and receive health insurance for yourself and your spouse as part of your retirement
package. In your letters, you do not identify in what capacity you were employed with
the Authority. However, in a telephone conversation with Chief Counsel on August 2,
2006, you provided the following information regarding your employment with the
Authority. You were employed as an Accountant with the Authority. Your duties
included processing invoices, issuing checks, and making investments for the Authority.
You were able to take certain independent discretionary actions and recommend
courses of action to the Authority Board.
The Authority was formed to include three boroughs and three townships, one of
which is Somerset Township. The three townships have declined representation on the
Authority Board since its inception. The current Authority Board has extended an offer
to each of the three townships to appoint a representative to the Authority Board. You
are a resident of Somerset Township. You responded to an advertisement in the
newspaper seeking a representative from Somerset Township for the Authority Board.
You would refuse monthly compensation of $35.00 if you would be appointed to the
Authority Board.
You seek guidance as to whether it would be a conflict of interest under the
Ethics Act for you to be appointed to serve as a Member of the Authority Board. You
Greenlee, 06 -580
August 29, 2006
Page 2
also seek guidance as to whether serving on the Authority Board would jeopardize your
retirement or health insurance 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. 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 the former capacity as an Accountant for the Authority Board, you would be
considered a "public employee" subject to the Ethics Act and the Regulations of the
State Ethics Commission. See, 65 Pa. C.S. § 1102; 51 Pa. Code § 11.1. This
conclusion is based upon the submitted facts, which when reviewed on an objective
basis, indicate clearly that the power exists to take or recommend official action of a
non - ministerial nature with respect to one or more of the following: contracting;
procurement; planning; inspecting; administering or monitoring grants; leasing;
regulating; auditing; or other activities where the economic impact is greater than de
minimis on the interests of another person.
Consequently, upon termination of public service, you became a "former public
employee" 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.
Greenlee, 06 -580
August 29, 2006
Page 3
"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.
The governmental body with which you were associated upon termination of
public service is the Authority in its entirety.
Greenlee, 06 -580
August 29, 2006
Page 4
Per State Ethics Commission precedents, Section 1103(g) of the Ethics Act does
not prohibit the appointment /rehiring of a former public official /public employee to a
public office or position of public employment with the former governmental body.
Confidential Opinion, 93 -005; Confidential Opinion, 97 -008; Long, Opinions 97 -010 and
97- 010 -R; McGlathery, Opinion 00 -004. Therefore, you are advised that Section
1103(g) of the Ethics Act would not prohibit you from being appointed to serve as a
Member of the Authority Board.
If you would be appointed to serve as a Member of the Authority Board, you
would in that capacity once again become subject to the Ethics Act, and Section
1103(g) of the Ethics Act would cease to apply to you with respect to the Authority. If
you would not be appointed to serve as a Member of the Authority Board, Section
1103(g) of the Ethics Act would apply to restrict you for the full one -year period following
your retirement from the position of Accountant for the Authority.
As to whether serving on the Authority Board would jeopardize your retirement or
health insurance benefits, such is beyond the jurisdiction of the State Ethics
Commission and cannot be addressed in this Advice.
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. Specifically not addressed herein is the
applicability of the Municipality Authorities Act.
Conclusion: In the former capacity as an Accountant with the Pigeon Creek
Sanitary Authority ( "Authority "), you would be considered a "public employee" 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 Authority, you became a "former public employee"
subject to Section 1103(g) of the Ethics Act. The former governmental body is the
Authority in its entirety. Section 1103(g) of the Ethics Act does not prohibit the
appointment /rehiring of a former public ( official /public employee to a public office or
position of public employment with the former governmental body. Thus, Section
1103(g) of the Ethics Act would not prohibit you from being appointed to serve as a
Member of the Authority Board. If you would be appointed to the Authority Board, you
would in that capacity once again become subject to the Ethics Act, and Section
1103(g) of the Ethics Act would cease to apply to you with respect to the Authority. If
you would not be appointed to the Authority Board, Section 1103(g) of the Ethics Act
would apply to restrict you for one year following your retirement from your position as
an Accountant with the Authority.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
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.
Greenlee, 06 -580
August 29, 2006
Page 5
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
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