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HomeMy WebLinkAbout89-532 AhlfeldJohn R. Ahlfeld, AICP 2634 Royal Road Lancaster, PA 17603 Dear Mr. Ahlfeld: 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 21, 1989 89 -532 Re: Former Public Employee; Section 3(e), Planning Director, Termination Date This responds to your letter of March 14, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the County Planning Commission. Facts: After advising that you resigned as Planning Director of the Lancaster County Planning Commission on March 15, 1988, wherein you directed the comprehensive planning program for Lancaster County since 1969 together with providing information and advice to the Lancaster County Commissioners, you state that you resigned in accordance with the wishes of the majority of the county commissioners. You then note that you vacated your office a few days after your March 15, 1988 resignation and had absolutely no further duties, responsibilities, authority or power of any kind relating to your previous work. You note, however, that you did continue to receive a bi- weekly check in the amount of half of your previous pay check until August 12, 1988 which was the twentieth anniversary of your employment with the county at which time you qualified for a pension. You state that the checks that you received for the five months between March 15 and August 12 approximate the amount of unused vacation and sick leave that was due you for which you received no other reimbursement. During the five month period you state you did no work for the Lancaster County Planning Commission or the Lancaster County Commissioners aside from looking for suitable employment. You then inquire as to whether the one year restriction of Section 3(e) of the Ethics Act begin to run from March 15, 1988 or from August 12, 1988. You assert that if the former date controls, you believe that you would be restricted John R. Ahlfeld, AICP April 21, 1989 Page 2 for seventeen rather than twelve months as was intended by the Act. You then pose a second question which you only wish answered if your termination date under the Ethics Act is considered as March 15, 1989. Your second inquiry concerns your present employment status wherein you work on a consulting basis as Executive Director of the Lancaster Inter - Municipal Committee (LIMC). You state that LIMC is an organization of ten municipalities including the City of Lancaster which was formed to facilitate inter - municipal cooperation and activities on common issues and concerns. Your specific question is whether you may work with the Lancaster County Director of Purchasing either individually or as part of a group committee relating to joint purchasing activities for LIMC or its member municipalities. In this regard, you state that joint purchasing is a high priority activity of LIMC and the County's Director of Purchasing is initiating a program to assist local municipalities in the activity. Discussion: As a County Planning Director for Lancaster County, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of this employment, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act 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. Initially, to answer your request the "governmental body" with which you were associated while working with the Lancaster County Planning Commission must be identified. Then, the scope of the prohibitions associated with the concept and term of John R. Ahlfeld, AICP April 21, 1989 Page 3 "representation" must be reviewed. In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, Opinion 79 -010. See also Kurt v. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). In respect to the one year representation the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1 Definitions. 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 employee. 51 Pa. Code §1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, that is, including, but not limited to, negotiations or renegotiations on contracts; 2. Attempts to influence; 3. Participating in any matters over which you had supervision, direct involvement, or responsibility; 4. Lobbying, that is representing the interests of any person or employer in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. Although it would be normally necessary to determine your former governmental body and the parameters of the term "representation ", the foregoing is unnecessary in the instant matter in light of the fact that you terminated your service by your resignation on March 15, 1988. Although you did receive checks between March 15 and April 12, 1988, it is clear that John R. Ahlfeld, AICP April 21, 1989 Page 4 these checks were for your unused vacation and sick leave. What is dispositive is the -fact that you resigned on March 15, 1988 and concluded all of your work activities as of that time with no further duties, responsibilities, authority or any power of any kind relative to your position. Therefore, the one year restriction under the Ethics Act expired March 15, 1989 and as a consequence it is unnecessary to address the second question which you have posed in your advice request. 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 official or public employee or candidate for public office would be influenced thereby. 65 P.S. S403(b). 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 a County Planning Director, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the county, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. Since your termination date in the instant matter was March 15, 1988, the one year restriction of Section 3(e) expired on March 15, 1989. Therefore, Section 3(e) of the Ethics Act no longer restricts your activities after March 15, 1988. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also John R. Ahlfeld, AICP April 21, 1989 Page 5 requires you to file a Statement of Financial Interests for the year following your termination of service. 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 Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent J. Dopko, General Counsel