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HomeMy WebLinkAbout84-569 GreenblatMr. Jack I. Greenblat Baral Investment Company 2911 Allen Street Allentown, PA 18104 Dear Mr. Greenblat: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 May 25, 1984 ADVICE OF COUNSEL RE: Turnpike Commission, Representation, Section 3(e) 84 -569 This responds to your letter of May 24, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask what restrictions the Ethics Act places upon your activities as the former Chairman of the Pennsylvania Turnpike Commission, hereinafter the Commission. Facts: You indicate that you left your position as Chairman of the Commission as of March 29, 1984. You have been asked to contract with a firm located in Connecticut known as ALTA Technology Incorporated, hereinafter ALTA. You have provided us with a copy of a proposed and as yet unsigned retainer contract for your services as a consultant with ALTA. This contract, as proposed, would commence as of April 15, 1984, and remain in effect for one year. Under this contract you would operate as a consultant for ALTA with respect to its automated fare collection systems. In particular, the contract calls for you to provide consulting services to ALTA to assist them in informing potential users about ALTA's automated fare collection systems and equipment. However, both you and ALTA are aware of the applicability of the State Ethics Act to this situation. In fact, the consulting contract details your agreement to submit this contract to the State Ethics Commission for the issuance of advice or opinion with respect to your acceptance of this retainer and your performance of services under the retainer. Each of the parties to this agreement are concerned that full compliance with the State Ethics Act occurs. The retainer agreement indicates that you "shall undertake no duties nor perform any services as our (ALTA's) consultant prohibited by the Ethics Act" and that in this regard for not less than "a year and a day after the date of termination of your association with the Pennsylvania Turnpike Commission, you shall not represent ALTA on any matter before the Commission." Mr. Jack I. Greenblat May 25, 1984 Page 2 In addition to the above information, you also indicate that ALTA signed a contract over two years ago with the Commission to provide the Commission with a completely new toll collection system. The decision to undertake this contract with ALTA was made at a properly constituted public meeting and was unanimously approved by the Commission. However, you indicate that prior to the date of the Commission's meeting /approval of this contract you had never spoken to or engaged in any negotiations with any individual representative of ALTA. ALTA was hired upon the recommendation of a three - tiered committee set up by the Executive Director of the Commission. This contract was approved following a request for proposals to which ALTA responded. You have indicated that the chief engineer of the Commission, who headed the committee, is available to prepare a summary of how this company was selected, if necessary. Your letter of request also indicates that you are interested in accepting the offer of retainer for the consultant services outlined above from ALTA as soon as possible. You indicate that as a result of your service with the Commonwealth, which began in 1970, you have acquired and maintained a reputation for expertise in the area of operating toll roads systems. You wish to be able to use this knowledge and expertise as a consultant and in particular as a consultant with ALTA. You do not, however, wish to undertake this retainer or contract without seeking and securing an opinion that will indicate that your performance of such services, under the terms and conditions outlined above and as are outlined in your agreement with ALTA, would be in compliance with the State Ethics Act. Discussion: During your tenure with the Commission you were a "public official" as defined in the State Ethics Act. See 65 P.S. 402. Therefore, upon termination of such service with the Commission, you became a "former public official" as of March 29, 1984. As a "former public official" your conduct must conform to the requirements of Section 3(e) of the State Ethics Act as cet forth below: (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). As a former public official, you must, for the first calendar year following your termination of employment with the Commission refrain from "representation" as the State Ethics Commission has defined that term in its opinions and regulations vis -a -vis any governmental body with which you may have been "associated" while serving with the Commission. We must, therefore, review your request by asking the questions: Mr. Jack I. Greenblat May 25, 1984 Page 3 1. What is the scope of the term and activity know as "representation "? 2. To which governmental bodies or body do the restrictions and prohibitions against representation extend in your case? We will answer this latter question first. It is clear that your capacity as Chairman indicates that you were "associated with" the entire Turnpike Commission. Therefore, any restrictions and prohibitions which are discussed further below extend to the Turnpike Commission as a whole. In response to the first question, we note that the regulations of the Ethics Commission provide that the term "representation" includes the following activities: Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. Further, the Ethics Commission has determined that the prohibited activity described as "representation" which you must avoid with respect to the Commission for the one year period set forth in Section 3(e) applies to such activities as: 1. Personal appearances before the governmental body, in this case the Turnpike Commission, with which you were associated, including but not limited to negotiation or re- negotiation on contracts with the Commission; 2. Attempts to influence the Commission; 3. Participation in any manner before the Commission in a case or matter over which you had supervision, direct involvement, or responsibility while employed by the Commission; and 4. Lobbying, that is representing the interests of any person or client before the Commission with respect to legislation, regulations, etc. See Russell, 80 -048 and Seltzer 80 -044. Mr. Jack I. Greenblat May 25, 1984 Page 4 It should be noted that the mere act of having your name appear on a submission on behalf of a client made to the Commission is considered to be within the scope of prohibited activity under Section 3(e) of the Act. See Kilareski, 80 -054. This is because the inclusion of your name as preparer or technical advisor on such a proposal to be submitted to or reviewed by the Commission has the potential for influencing the decision of the Commission and, therefore, must be prohibited for the one year period following your termination of service with the Commission. Given the terms and conditions or your contract with ALTA, however, as set forth above, it is clear that you do not intend to nor will you be required to undertake any duties or perform any services for ALTA with respect to the Commission. This course of conduct and the terms of the contract will insure compliance with Section 3(e) of the Ethics Act. The restrictions outlined above are general ones and must be applied for the one year following your termination of services with the Commission, even though you indicate that you do not intend to undertake any representation of ALTA vis -a -vis the Commission. Notwithstanding these restrictions, the decisions of the Ethics Commission indicate that even within the first year period you may engage, without restriction under the Ethics Act, in the following activities: 1. You may administer rather than negotiate or renegotiate any contract that exists or is to be awarded to you or your future employer or client so long as the contract was entered into without the inclusion of your name as noted above; 2. You may make general informational inquiries of your former governmental body (the Commission) so long as no attempt is made to influence the Commission as prohibited above; 3. You may utilize the knowledge and expertise gained during your tenure as a public official so long as you do not use any confidential information gained during that time; 4. You may appear and represent any person on behalf of any client or new employer before any governmental body other than the Commission. Thus, it is clear that you may accept this position and if your conduct conforms to the above presentation and discussion and the terms of the contract with ALTA, you may utilize the knowledge and expertise which you have acquired as Chairman of the Commission without fear of violating Section 3(e) of the State Ethics Act. Mr. Jack I. Greenblat May 25, 1984 Page 5 Conclusion: Upon your termination of service with the Commission you became a "former public official" subject to the restrictions imposed by the State Ethics Act in Section 3(e) thereof. Your conduct as a "former public official" must conform to the requirements of the State Ethics Act as described in this Advice and you should take note of both the prohibited and allowable activities. Additionally, as a former public official you must file a Statement of Financial Interests for each year that you held public office and for the year following your termination of such service. Thus, a Statement of Financial Interests should be filed no later than May 1, 1985, which represents the filing required for the year following your termination of service. This financial disclosure will record information for the calendar year 1984. Pursuant to Section 7(9)(ii), this 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, 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 such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /na Sincerely, andra S. Chr'stianson General Counsel