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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