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HomeMy WebLinkAbout89-524 MazziottiDear Mr. Mazziotti: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 4, 1989 Mr. Donald F. Mazziotti 89 -524 Delta Development Group, Inc. 355 North 21st Street Suite 304 Camp Hill, PA 17011 Re: Former Public Official, Executive -Level State Employee, Section 3(e), Section 3(g), Acting Secretary of Commerce, Executive Director of Pennsylvania Economic Development Partnership, Development Consulting Firm This responds to your letter of March 1, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon you or a business with which you are associated from applying for funding on behalf of clients or otherwise representing them as to your formal governmental body, the Pennsylvania Department of Commerce. Facts: You were the former Executive Director of the Pennsylvania Economic Development Partnership and Acting Secretary of the Department of Commerce until your termination of employment on November 9, 1987. You advise that since February 11, 1988 you have been employed by and are one of the principal shareholders in Delta Development Group, Inc., a Camp Hill development consulting firm formed in January, 1987. You then pose three questions under the Ethics Act: whether Delta Development Group Inc., hereinafter Delta, would be precluded under the Ethics Act from applying for funding on behalf of clients or representing them or serving as a contractor to grant or loan recipients or otherwise communicating or doing business with the Pennsylvania Department of Commerce, hereinafter Commerce, because of your ownership in Delta; whether the Ethics Act would preclude you as an employee or agent of Delta from applying for funds on behalf of clients or representing clients Mr. Donald F. Mazziotti April 4, 1989 Page 2 or serving as a consultant to grant or loan recipients or otherwise communicating or doing business with the Department of Commerce and lastly what recourse you would have, assuming that the Ethics Act would not impose restrictions as to the first two questions you pose, against public officials /employees, of the Commonwealth who might seek to limit the ability of you or Delta to conduct business with Commerce. Discussion: As former Executive Director of the Pennsylvania Partnership and Acting Secretary of Commerce, you were a "public official" and executive -level state employee as those terms are defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1; Mazziotti, 87- 005 -R. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(e) of the Ethics Act provides: 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. S403. Section 3(e) quoted above imposes a one year representation restriction upon former public officials /employees. Since you terminated your state service on November 9, 1987, the one year restriction period in Section 3(e) expired on November 9, 1988 and would have no further application to your activities. Section 3(g) of the Ethics Act provides: Section 3. Restricted Activities (g) No former executive -level State employee may for a period of two years from the time that he terminates his State Employment be employed by receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated Mr. Donald F. Mazziotti April 4, 1989 Page 3 in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. 5403(g). As noted above, Section 3(g) sets forth a specific prohibition that a former executive level state employee for a period of two years after termination of state employment may not be employed or receive any compensation or may act in a representative capacity for a business or corporation that the former executive level state employee participated in recruiting. It should be further noted that the above restriction specifically applies to situation where the recruitment is accomplished by a grant or loan or money or a promise of a grant or loan for money from the Commonwealth to the business or corporation recruited or induced to expand. The intendment of the above provision of the Ethics Act is to prohibit an executive level state employee from obtaining employment or acting as a representative for various businesses or corporations that were recruited or induced to expand. Osborne, Advice 88 -589. Thus, Section 3(g) of the Ethics Act would restrict your employment for a two year period as to any business or corporation if the recruitment or inducement was accomplished by a grant, loan, money or promise of a grant, loan of money from the Commonwealth to the business or corporation which was recruited or induced to expand. Section 3(g) of the Ethics Act would not preclude your employment or representation of clients unless the above qualifying condition of Section 3(g) is applicable. Therefore, in answer to the first two questions you pose, Section 3(g) of the Ethics Act would neither preclude you or Delta Development Group, Inc. from either applying for funding on behalf of clients or representing clients or serving as a contractor to grant or loan recipients or otherwise communicating or doing business with Commerce provided that you, when you served as Executive Director of Pennsylvania Economic Development Partnership or Acting Secretary of Commerce, did not actively participate in recruiting them or induce them to open a new plan facility or branch of the Commonwealth or participate in inducing them to expand and existing plan or facility that was accomplished by a grant or loan of money from the Commonwealth to Mr. Donald F. Mazziotti April 4, 1989 Page 4 the business or corporation that was recruited or induced to expand under Section 3(g) supra. As to the third question you pose, that inquiry may, not be addressed in this advice since it is beyond the scope of the Ethics Act. 65 P.S. S407(9)(ii). Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. 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: As former Executive Director of the Pennsylvania Economic Development Partnership and Acting Secretary of Commerce, you were a former public official subject to the restrictions of Section 3(e) of the Ethics Act; however, since you terminated your employment with the Commonwealth on November 9, 1987, the one year restriction expired on November 9, 1988; Section 3(e) would not now restrict such activity. As former Executive Director of the Pennsylvania Economic Development Partnership and Acting Secretary of Commerce you were executive - level employee and would be restricted under Section 3(g) of the Ethics Act of employment for a two year period as to any business Mr. Donald F. Mazziotti April 4, 1989 Page 5 or corporation wherein the recruitment or inducement was accomplished by grant, loan, money or the promise of a grant or loan of money from the Commonwealth to the entity recruited or induced to expand. Section 3(g) of the Ethics Act would restrict your employment for a two year period as to any business or corporation only if the recruitment or inducement was accomplished by a grant, loan, money or promise of a grant, loan of money from the Commonwealth to the business or corporation which was recruited or induced to expand. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as 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 52.12. Sincerely, Vincent J. Dopko, General Counsel