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HomeMy WebLinkAbout89-031 PollockMr. Mark H. Pollock Suite 510 City- County Building Pittsburgh, PA 15219 Dear Mr. Pollock: 1989. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley DATE DECIDED: December 5, 1989 DATE MAILED: December 15, 1989 89 -031 Re: Former Public Official, City Council, Representation, Attorney, Governmental Body with Which a Public Official or Public Employee Is or Has been Associated, Non - Profit Organizations. This Opinion is issued in response to your request of October 17, What restrictions does the Public Official and Employee Ethics Law impose upon a former member of city council for a period of one year after termination of service as to representing non - profit organizations before the city either as an officer of or attorney for the organizations. II. Factual Basis for Determination: You serve on Pittsburgh City Council and will leave your position at the end of this year. In your capacity as a private citizen you will continue to serve on the boards of non - profit organizations. As a board member or officer of these non - profit organizations, you may have dealings with the city in areas such as zoning matters, requests for grants or donations or other interactions concerning city services or discretionary acts. You inquire as to whether you would be prohibited from assisting or acting for a non- profit organization in its dealings with the city after you leave council and if so for what period of time. In addition, after noting that you are an attorney who will practice law after you leave public service, you inquire as to what restrictions would be imposed upon you Mr. Mark H. Pollock Page 2 concerning your representation of non - profit organizations in any matter involving the city. In all likelihood such representation would be pro bono, but situations could arise where you might receive a fee as a result of the time and effort involved. You indicate that the City of Pittsburgh operates under a home rule charter and every member of council serves on the planning and housing development, public safety, general services and finance committees. You note that zoning matters would be directed through the planning and housing development committee. Council would have discretion as to the allocation of moneys and any grants, donations or federal funds would pass through the finance committee. Finally, you state that members of government units such as the zoning board of appeals and planning commission, although separate from council, are appointed by the mayor and confirmed by council. As to the Urban Redevelopment Authority and Housing Authority, you note that they are creatures of the state but are commingled in their function with the City. As to your status of an attorney, you believe that many situations arise wherein it is difficult to discern whether the representation of a person is in a lawyer- client capacity or whether it would be characterized as general advocacy or lobbying which might not be considered as legal representation. You neither claim nor assert any status as to your legal representation of clients and further advise that you would be unable to specifically categorize the nature of your activities as that of rendering legal services. III. Discussion: As a member of Pittsburgh City Council you are a public official as that term is defined under the Public Official and. Employee Ethics Law of June 26, 1989, Act 9 of 1989. Accordingly, you are subject to the provisions of the Ethics Law and the restrictions therein are applicable to you. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. In addition, Section 3(g) of the Ethics Law provides: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised Mr. Mark H. Pollock Page 3 or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. The following terms are defined under the Ethics Law: "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. "Conflict" or "conflict of interest" 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 or 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. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The govgrnmental body within State government or a political subdivision by which 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. Mr. Mark H. Pollock Page 4 "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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, Section 3(a) of the Ethics Law has application to you while you serve on council and restricts you from using the authority of office for any private pecuniary benefit for yourself, a member of your immediate family or business with which you are associated. Upon termination of your service with city council, you would become a former public official subject to the requirements of Section 3(g) of the Ethics Law quoted above. Section 3(g) would restrict you for a period of one year after termination of service from representing a person for promised or actual consideration before the governmental body with which you were associated. Initially, we must decide what is the governmental body with which you are associated. In this case, the definitions of "governmental body" and "governmental body with which a public official or public employee is or has been associated" make it clear that your governmental body would be the City of Pittsburgh which would include all government units therein as well as city authorities, hereinafter collectively referred to as the City. We reach our finding based upon your statements as to the interconnection between council and the other government units and authorities in Pittsburgh. Therefore Section 3(g) of the Ethics Law would apply and would restrict your representation of persons or new employers or non - profit organizations before the City for promised or actual compensation for a period of one year of termination of your service. The Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to their former Mr. Mark H. Pollock Page 5 governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. In Popovich, Opinion 89 -005, we determined that the term "represent" in addition to restricting the activities set forth in that definition also prohibited a former public official /employee from engaging in the following activities: Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; attempts to influence; submission of bid or contract proposals which are signed or contain the name of the former public official /employee; participating in any matters over which there was supervision, direct involvement, or responsibility and lobbying, that is representing the interests of any person or employer in relation to legislation, regulations, ordinances, etc. We have also held that listing one's name as the person who provide technical assistance on proposals, documents, or bids, if submitted to or reviewed by the former governmental body constitutes an attempt to influence. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance provided your activity in this respect would not be revealed. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries to secure information which is available to the public. This, of course, must not be done in an effort to indirectly influence or to otherwise make known to the governmental body your representation of, or work for the new employer. Finally, we have concluded that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. Regarding your second inquiry as to whether the Ethics Law would restrict you as an attorney from practicing law or representing non- such. Mr. Mark H. Pollock Page 6 profit organizations either on a pro bono or a fee basis, you have indicated that it is difficult to differentiate between certain actions by an attorney representing a client versus those actions which could be considered as mere non legal advocacy or lobbying. Since you have not sought to assert any status as an attorney in the legal representation of clients, we will not address that question. However, from the above analysis, it is clear that Section 3(g) of the Ethics Law would not restrict your representation of a person if you do not receive promised or actual consideration. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the propriety of any other statute, code, regulation or ordinance other than the Ethics Law has not been considered. Specifically not addressed in this Advice is the applicability of the Rules of Professional Conduct. When your service is terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. IV. Conclusion: As a member of city council you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law restricts you from using the authority of office to obtain a private pecuniary benefit for yourself, a member of your immediate family or business with which you are associated. Upon termination of your service on council, you would become a former public official subject to the provisions of Section 3(g) of the Ethics Law. Section 3(g) of the Ethics Law would restrict you as a former city councilmember for a period of one year from representing any person for compensation before the governmental body with which you were associated. Representation of a person without promised or actual consideration would not be restricted by Section 3(g). The restriction of Section 3(g) would include city council, together with all government units of the city and authorities interconnected with the city. After you terminate service, you are required to file a Statement of Financial Interests in the year following termination of your service. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing 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 Mr. Mark H. Pollock Page 7 Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission ✓. Helena G. Hughes, Chair