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HomeMy WebLinkAbout06-595 STOKESJohn R. Stokes 1034 Springfield Court Renfrew, PA 16053 Dear Mr. Stokes: ADVICE OF COUNSEL November 2, 2006 06 -595 This responds to your letter of October 7, 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 township zoning officer and building code official following termination of service with the township, and whether a member of a township planning commission must abstain from voting on a project presented to the planning commission by a firm when the planning commission member has acted as a consultant to the firm on other projects. Facts: In June 2006, you retired from your position as the Zoning Officer and Building Code Official for Butler Township, which is located in Butler County. Your responsibilities included development and enforcement of the zoning and land development regulations of Butler Township. You worked with residents and developers to ready their plans for submission to and approval by the Butler Township Commissioners. You enforced the Building Code and related ICC Codes for Butler Township, and you oversaw Butler Township's construction projects and computer and phone installations. Since your retirement, Butler Township has retained you as a consultant to finish some projects. Also since your retirement, you have been retained by two local firms to assist them with obtaining approvals of projects in the local area, including Butler Township. You note that the Ethics Act restricts a former public official from providing representation before his former governmental body for one year after termination of service with that body. Based upon these facts, you pose the following specific inquiries: (1) Would the governmental body with which you were associated be only the Butler Township Commissioners, or would it also include the Planning Commission and Zoning Hearing Boards of Butler Township? (2) Did the one year period during which the Ethics Act would restrict representation before your former governmental body begin when you Stokes, 06 -595 November 2, 2006 Page 2 retired in June 2006, or would it begin when your consulting duties with Butler Township are completed? (3) May you consult on zoning and code enforcement matters for clients who are presenting plans for approval in Butler Township but not perform any presentations before your former governmental body? You pose a separate specific inquiry based on the following facts. You are a resident of Connoquenessing Township in Butler County and serve on that township's Planning Commission. It is your understanding that if you are a consultant for a firm that is presenting a proposal to the Connoquenessing Township Planning Commission, you must recuse yourself if you are working on that particular project. You ask whether you would have to recuse yourself from Planning Commission proceedings when that same firm would present a proposal on a specific project for which you are not acting as a consultant. 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. It is further initially 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. To the extent that your inquiries relate to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent that your inquiries relate to future conduct, your inquiries may, and shall, be addressed. This advisory will first address your inquiries with regard to the restrictions the Ethics Act would impose upon your employment following your retirement from your position with Butler Township. In the former capacity as the Zoning Officer and Building Code Official of Butler Township, you would be considered a "public official /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. Consequently, upon termination of public service in that position, you became a "former public official /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. Stokes, 06 -595 November 2, 2006 Page 3 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. 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 Stokes, 06 -595 November 2, 2006 Page 4 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 have been associated following termination of public service would include Butler Township, see, Evans, Advice of Counsel, 86 -558, and the Township Zoning Hearing Board(s), see, Caldwell, Order 99- 007-C2. Therefore, for the first year following termination of service with Butler Township, Section 1103(g) of the Ethics Act would clearly apply to restrict "representation" of "persons' before Butler Township and the Township Zoning Hearing Board(s). As for the Butler Township Planning Commission, there are insufficient facts to enable a conclusive determination as to whether, as a result of your duties and responsibilities as the Zoning Officer and Building Code Official, you would be considered to have been an employee of the Planning Commission as well as of the Township. Therefore, you are advised that to the extent your duties and responsibilities as the Zoning Officer and Building Code Official were such that you would be considered to have been an employee of the Planning Commission as well as of the Township and the Township Zoning Hearing Board(s), the Planning Commission would be part of your former governmental body, and you would be restricted from engaging in prohibited representation before the Planning Commission for one year following termination of public service. Having established the above general principles, your specific inquiries involving Section 1103(g) shall be addressed. As noted above, to the extent your inquiries relate to the propriety of your retention as a consultant for Butler Township following your retirement from your position with the Township, such past conduct cannot be addressed in this advisory as an advisory may be given only with respect to prospective conduct. Therefore, this advisory must necessarily be limited to addressing only your prospective conduct. Parenthetically, it is noted that the Commission has held that a former "public official" or former "public employee" may not contract with his former governmental body during the first year following termination of public service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. With respect to your first specific inquiry, as to what would constitute your former governmental body, that has been addressed above. As to your second specific inquiry, you are advised that the one -year period during which Section 1103(g) would restrict you with regard to representation before your former governmental body began when you retired from your position as the Zoning Officer and Building Code Official for Butler Township in June 2006. As to your third specific inquiry, you are advised that the Ethics Act would not prohibit you from consulting on zoning and code enforcement matters for clients who would present plans for approval in Butler Township provided that in so doing, you Stokes, 06 -595 November 2, 2006 Page 5 would not engage in any activity that would constitute prohibited representation before Butler Township. Such prohibited representation would include, but would not be limited to, providing presentations before Butler Township. Your separate inquiry that is based upon your service as a Member of the Connoquenessing Township Planning Commission shall next be addressed. This inquiry presents a preliminary issue as to whether you, as a Member of Connoquenessing Township Planning Commission, are a public official subject to the Ethics Act. This issue cannot be resolved under the facts that you have submitted, because the submitted facts do not disclose whether the Planning Commission is a purely advisory body. Under the Ethics Act and its Regulations, members of planning commissions that are purely advisory and do not have the authority to expend public funds (other than to reimburse personal expenses) or to otherwise exercise the power of the State or any political subdivision thereof, are not public officials and thus are not subject to the conflict of interest provisions of the Ethics Act. However, members of planning commissions that have the power to make determinations and to expend public funds or to otherwise exercise governmental powers are public officials and thus are subject to the conflict of interest provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa. C. S. § 1103(a). The following terms are defined in the Ethics Act 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. Stokes, 06 -595 November 2, 2006 Page 6 "Business with which he is associated " Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (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 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(j). In each instance of a conflict, Section 1103(j) requires the public official/ employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the instant matter, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited Stokes, 06 -595 November 2, 2006 Page 7 under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity or private client(s). Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. In Kannebecker, Opinion 92 -010, the State Ethics Commission determined that a township supervisor, who in his private capacity was an attorney, would have a conflict of interest as to matters before the township involving ongoing client(s) or client(s) for whom he was on retainer, even if he would not represent such client(s) as to the matter pending before the township. The Commission determined that as a general rule, a conflict would not exist as to former client(s), but that under certain circumstances, a conflict could exist as to former client(s) depending upon factors such as the number of prior representations of the given client and the period of time over which such occurred. Having established the above general principles, you are advised as follows. If the power of the Connoquenessing Township Planning Commission is limited to performing advisory functions only, then you, as a Planning Commission Member, would not be considered a "public official" and thus would not be subject to the conflict of interest provisions of the Ethics Act. If the Connoquenessing Township Planning Commission has the power to make determinations and to expend public funds or to otherwise exercise governmental powers, then you, as a Planning Commission Member, would be considered a "public official" and thus would be subject to the conflict of interest provisions of the Ethics Act. The firm to which you provide consulting services would be considered to be a client of yours. As a general rule, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters that would involve yourself, an immediate family member, a business with which you or a member of your immediate family is associated, or private client(s) such as the firm for which you act as a consultant. See, Miller, supra. You would specifically have a conflict where that firm would present a project to the Planning Commission even if you would not have acted as a consultant on that project. See, Kannebecker, supra. In each instance of a conflict, you would be required to abstain from participation and to satisfy the disclosure requirements under Section 1103(j) of the Ethics Act. Based upon the facts which have been submitted, this advice has addressed the applicability of Sections 1103(a), 1103(g), and 1103(j) of the Ethics Act 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 the Zoning Officer and Building Code Official of Butler Township, you would be considered a "public official /public employee" Stokes, 06 -595 November 2, 2006 Page 8 as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with Butler Township, you became a "former public official /public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you have been associated following termination of public service would include Butler Township and the Township Zoning Hearing Board(s). Therefore, for the first year following termination of service with Butler Township, Section 1103(g) of the Ethics Act would clearly apply to restrict "representation" of "persons" before Butler Township and the Township Zoning Hearing Board(s). As for the Butler Township Planning Commission, there are insufficient facts to enable a conclusive determination as to whether, as a result of your duties and responsibilities as the Zoning Officer and Building Code Official, you would be considered to have been an employee of the Planning Commission as well as of the Township. Therefore, you are advised that to the extent your duties and responsibilities as the Zoning Officer and Building Code Official were such that you would be considered to have been an employee of the Planning Commission as well as of the Township and the Township Zoning Hearing Board(s), the Planning Commission would be part of your former governmental body, and you would be restricted from engaging in prohibited representation before the Planning Commission for one year following termination of public service. The one -year period during which Section 1103(g) would restrict you with regard to representation before your former governmental body began when you retired from your position as the Zoning Officer and Building Code Official for Butler Township in June 2006. The restrictions as to representation outlined above must be followed. The Ethics Act would not prohibit you from consulting on zoning and code enforcement matters for clients who would present plans for approval in Butler Township provided that in so doing, you would not engage in any activity that would constitute prohibited representation before Butler Township. Due to a factual insufficiency, it cannot be determined whether you, in your capacity as a Member of the Connoquenessing Township Planning Commission, are a public official. If the power of the Planning Commission is limited to performing advisory functions only, then you, as a Planning Commission Member, would not be considered a "public official" and thus would not be subject to the conflict of interest provisions of the Ethics Act. However, if the Planning Commission has the power to make determinations and to expend public funds or to otherwise exercise governmental powers, then you, as a Planning Commission Member, would be considered a "public official" and thus would be subject to the conflict of interest provisions of the Ethics Act. As a public official /Member of the Planning Commission, you would have a conflict of interest in matters that would involve yourself, an immediate family member, a business with which you or a member of your immediate family is associated, or private client(s) such as the firm for which you act as a consultant. You would specifically have a conflict where that firm would present a project to the Planning Commission even if you would not have acted as a consultant on that project. In any instance of a conflict, you would be required to abstain fully from participation and observe the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, since service has been 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. Stokes, 06 -595 November 2, 2006 Page 9 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