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HomeMy WebLinkAbout89-561 RiggieriDino P. Riggieri 838 West Baltimore Pike Kennett Square, PA 19348 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 24, 1989 89 -561 Re: Former Public Official Section 3(e), Township Supervisor Dear Mr. Riggieri: This responds to your letter of June 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 Second Class Township Board of Supervisors. Facts: After noting that you were an elected supervisor in New Garden Township, Chester County, in November of 1961 and were reelected in 1968, 1974, 1980 and 1986, you state that you served as the Chairman of the Board of Supervisors in 1966 - 67, 1972 -73, 1978 - 79 and 1984 - 85 and continued to serve until January 9, 1989 when you resigned from office for reasons related to health. You advise that during your ten years with the Township, many changes occurred including the adoption and readoption of zoning ordinances, subdivision ordinances, Act 537 Sewage Facilities Plans and other legislation. You note that as a supervisor, you voted on approvals and disapprovals of numerous subdivision plans and zoning matters as well as voted on countless motions relating to a broad spectrum of normal Township policy and administrative issues. You then advise that the East end of the Township along Baltimore Pike, for some years, has experienced problems relative to malfunctions of individual lot sewage systems. You indicate that the forgoing problem led to an engineering study at the direction of the Supervisors in July of 1980; based upon the findings and conclusions, the township undertook an expansion of the sewer collection system which resulted in public sewer becoming available to the properties abutting near the Baltimore Pike, Bancroft Road, Chambers Road and some other lesser areas. You indicate that the proposed improvement would include a new force main at the Toughkenamon collections system and a new waste water treatment facility to serve the Township system. After noting that an application was made and a permit was received by DER for the East End Dino P. Riggieri Page 2 Main extension in 1986, permit No. 1586404, you state that in August of 1988 specifications were prepared for the main portion of the project. A force main permit was then granted by DER in March of 1989, No. 1588457, and the preliminary engineering was done for the sewage treatment facility but a permit has not been applied for because of delays relative to condemnation proceedings involving the site of the new facility. You state that the condemnation appeal is in the courts and consequently neither the east end ain extension nor force main have been constructed. After advising that you own a substantial amount of undeveloped land abutting Baltimore Pike and Bancroft Road at several points which property was acquired in parcels over the years consisting of, in part, 33 acres and 45 acres acquired in 1970 and 1979 respectively, a 7 acre parcel in 1981 and 3.5 acre parcel in 1987 and lastly an 8.5 acre parcel in 1989, you indicate your intent to move forward with the land development plan although actual construction may take place in several years. After noting that you are a former public official under Act 170 of 1978, you posed two questions to the commission: The nature of the prohibitions that exist regarding your land development plans of the above property vis -a -vis your former role as supervisor wherein you voted for the adoption of zoning ordinances, subdivision ordinances, sewer main extension and other issues and secondly, the permissibility of submitting plans and applications for development if your name would to appear on such documents before the formal governmental body with which you are associated. In addition to the above questions, you request comment on any other issues which may have bearing. Discussion: As a Township Supervisor for New Garden Township, you are to be considered a "public official" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. Consequently, upon termination of this employment, you would become a former public official" 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. S403. Initially, to answer your request the "governmental body" with which you were associated while working for New Garden Township must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. In this Dino P. Riggieri Page 3 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 Ewina, Opinion 79 -010. See also Kury v. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). Since it appears that your jurisdiction, responsibility, influence and control appears to have been the Board of Supervisors of New Garden Township, your governmental body would be that Board. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the New Garden Township Board of Supervisors, hereafter the Board. Therefore, within the first year after you would leave New Garden Township, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Board. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Board. Likewise, there is no general limitation on the type of employment in which you may engage following your departure from New Garden Township. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, Opinion 83 -014; Zwikl, Opinion 85 -004. 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 S1.1. Dino P. Riggieri Page 4 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 the Board), including, but not limited to, negotiations or renegotiations on contracts with the Board; 2. Attempts to influence the Board; 3. Participating in any matters before board over which you had supervision, direct involvement, or responsibility while employed by New Garden Township; 4. Lobbying, that is representing the interests of any person or employer before the board in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. The Commission has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Board, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80- 054. Therefore, within the first year after you leave New Garden Township, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Board, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may assist in the preparation of any documents presented to the Board so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Board. Once again, however, your activity in this respect should not be revealed to the Board. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Board to secure information which is available to the general public. See Cutt, Opinion 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Board your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract your activities would not be prohibited by the Ethics Act. See Dalton, Opinion 80 -056 and Beaser, Advice 81 -538. Dino P. Riggieri Page 5 Additionally, it is noted that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered on the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). As to the specific questions that you have posed under the Ethics Act, an advisory cannot be as to the first question you pose since that is past action on your part; advisory opinions may only be issued as to prospective conduct. Therefore, that question cannot be answered because all of your action as Township Supervisor occurred in the past. Turning to your second question, you are advised that the submission of plans or applications for development before your former governmental body, the Board, would constitute representation which is restricted under the Ethics Act, as explained above. 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 New Garden Township Supervisor, you are to be considered a "public official" as defined in the Ethics Act. Upon termination of your service with New Garden Township, you would become a "former public official" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is the Board. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also 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. such. This letter is a public record and will be made available as Dino P. Riggieri Page 6 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 S2.12. ,incerely, ` -03 Vincent . Dopko Chief Counsel