HomeMy WebLinkAbout85-586 SossongMauling Address
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
October 1, 1985
ADVICE OF COUNSEL
Ms. Anna Marie Sossong
99 South Cameron Street •
P.O. Box 11424
Harrisburg, PA 17108
85 -586
Re: Former Public Employee; Partner in Project, Involvement in Project as
Public Employee
Dear Ms. Sossong:
This responds to your request for advice from the State Ethics Commission
dated August 28, 1985.
Issue: Whether you may become a partner in a development project in which you
had been involved as a public employee.
Facts: You indicate that you were formerly employed by the Harrisburg Office
of Business and Industrial Development, as a Deputy Director. While you were
in this position, you were involved with an economic development project known
as the Allison Hill Project. This generally was a public /private partnership
in a state designated enterprise development area. This partnership was
between the Allison Hill Development Corporation and the City of Harrisburg.
The corporation consisted of approximately nine individuals who would
effectuate various development projects throughout the city. While employed
by the city you were involved in this project as a member of the negotiating
committee that drafted the partnership agreement between the corporation and
the city.
You were not a city representative to the partnership or any subcommittee
of the partnership. You also indicate that you were not privy to any private
meetings of the partners regarding plans for possible acquisitions while
employed by the city. All of your dealings with regard to this project were
with the the partnership attorney's rather than with the individual partners.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Ms. Anna Marie Sossong
October 1, 1985
Page 2
After your termination with the city, you became the attorney for an
individual who had proposed the acquisition of a building within the
enterprise development area. As part of this proposal, funds were to be
obtained from the City of Harrisburg for building renovations.
Originally, your client made this proposal to the members of the Allison
Hill Developement Corporation. These individuals decided not to participate
in the project so your client, thereafter, suggested that you participate in
the project.
It should be noted that your client was not a member of the corporation
and he was not a party to the agreement between the city and the corporation.
You and your client subsequently acquired a building at auction as joint
owners. Shortly thereafter, the members of the corporation expressed an
interest in securing part of this building. You would, thus, be part owner of
the building with the members of the corporation.
You ask whether, under the Ethics Act, if there is any prohibition as to
this activity.
You also ask whether you and the other joint owners may receive grant
funds from the city for renovation of the building in light of your former
employment.
Discussion: As a Deputy Director in the the Office of Business and Industrial
Development for the City of Harrisburg, you were a public employee as that
term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct
would be subject to the requirements of the Act.
Generally, the Act provides that:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
As a public employee you could not have used your position or any confidential
information obtained therein to obtain financial gain for yourself.
Ms. Anna Marie Sossong
October 1, 1985
Page 3
Your client, and partner was not a member of the corporation that entered
into the agreement with the city. Also it does not appear that any
information regarding the project was confidential at the time of the building
acquisition.
The fact that the members of the corporation now want to join in the
ownership of this building also does not appear to present a violation of the
Act.
Your role in the agreement between the city and the corporation appears
to have been limited. You did not designate the economic development area or
otherwise set or approve the terms of the agreement.
At the time of your acquisition of this building, it appears as though
all of the information as to the economic development project was publically
available and, thus, the project was generally available to the public.
You also indicate that while you will be in an ownership venture with
the members of the corporation, you will not be a member of the corporation
that entered into the agreement with the city.
We, thus, believe that there is no violation of the Ethics Act.
In additon to the foregoing, as a former public employee, you would be
subject to Section 403(e) of the Act. That Section provides that:
Section 3. Restricted activities.
(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).
Generally, as an attorney, this provision of the Act would not be
applicable to you insofar as your activity before your former governmental
body constitutes the practice of law. See, Pennsylvania Public Utility
Commission Bar Association v. Thornburgh, 62 Pa. Commw. 88, 434 A.2d 1327,
(1981), affirmed 498 Pa. 589, 450 A.2d 613, (1982).
If, however, the activities that you intend to undertake before the
governmental body with which you have been associated while employed by the
city do not fall within the category of the "practice of law" the prohibitions
of Section 3(e) of the Ethics Act would be applicable. Activities which might
he considered, by the Commission, not to constitute the "practice of law" or
to be undertaken in the capacity as lawyer - client, might include activities
such as lobbying and negotiating on contracts. _
Ms. Anna Marie Sossong
October 1, 1985
Page 4
In this respect, you may wish to seek the further advice of the
Commission, if and when necessary.
With relation to your participation in the grant rehabilitation program,
the Commission has issued a number of opinions relating to a current public
official's /employee's participation in such a program. The guidelines set
forth in these opinions are instructive and should set forth the relevant
considerations for the instant matter.
In these cases the Ethics Commission indicated that a public official or
public employee or a business with which he is associated could participate in
rehabilitation or grant programs so long as,that public official or public
employee:
1. played no role in establishing the criteria under which the program
at issue was to operate, particularly with reference to the
structure or administration of the program;
2. played no role in establishing or implementing the criteria by which
selections for program participation are to be or were made;
3. played no role in the process of selecting and reviewing applicants
or in awarding grants or funds;
4. used no confidential information acquired during the holding of
public office or public employment to apply for or to obtain such
funds, grants, etc. See Toohey, 83 -003; Balaban, 83 -004; Coploff,
83 -005.
Conclusion: Under the foregoing circumstances, there would be no violation of
the State Ethics Act if you were to become a joint property owner with a
corporation that contracted with the city while you were a city employee. As
a former public employee, you should follow the guidelines set forth herein.
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.
Ms. Anna Marie Sossong
October 1, 1985
Page 5
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 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.
JJC /sfb
Sincer
John J. 'no
Gener. Counsel