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HomeMy WebLinkAbout89-570 MacIsaacMr. George V. Maclsaac Broker & Appraiser 831 Michigan Blvd. Erie, PA 16505 Dear Mr. Maclssac: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1989 89 -570 Re: Former Public Official; Section 3(g); Board of Tax Revisions and Appeals; Commissioner This responds to your letters of August 21, 1989 and August 28, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Law presents any restrictions upon your employment following your termination of service with the Board of Tax Revisions and Appeals. Facts: You have served on the Board of Tax Revisions and Appeals in Erie County since January 1, 1972. Although your current appointment ended on March 29, 1989, your appointment was not renewed and a new appointee was not named until August 15, 1989. You pose four questions under the Ethics Law. First you inquire as to whether you could do appraisals for parties that would be handling appeals for clients. You are a licensed broker by the Commonwealth of Pennsylvania and as such are entitled to do appraisals which is part of your livelihood. The appraisals would be used during the appeal period between September 1, and October 31, 1989. Secondly you desire to know when your term actually ended; on March 29, 1989 which would be at the end of the four year period or on the date of the last meeting which was July 27, 1989 or at the date of the new appointment on August 15, 1989. Third, you ask when the one year restriction of the Ethics Act would end. Specifically, you ask whether the one year restriction period would include a date when you would enter appeal forms for the scheduling of a hearing. You cite an example that hearings are generally scheduled between September Mr. George V. Maclsaac Page 2 1, and October 31, of any given year and you wonder whether if you would be in compliance if you submitted such forms between August 16, and August 31. Lastly, you inquire as to whether you could do appraisals for assessment appeals on properties and counties other than Erie such as Warren or Crawford in that you have been approached by an attorney who handles cases for clients in those areas. Discussion: As a Commissioner for Erie County Board of Tax Revision and Appeals, you are to be considered a "public official" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of the Commission. 65 P.S. 402; 51 Pa. Code 1.1. Consequently, upon termination of employment, you would become a "former public official" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual 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. 5402. Initially, to answer your request the governmental body with which you were associated while working with Erie County Board of Tax Revision and Appeals must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 P.S. 5402 Mr. George V. Maclsaac Page 3 Thus, the governmental body with which you were been associated upon the termination of employment would be Erie County Board of Tax Revision and Appeals, hereinafter the Board. Therefore, within the first year after termination of service with the Board, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Board. The Ethics Law does affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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. In respect to the one year representation the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. 65 P.S. 5402. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 P.S. 5402. Mr. George V. MacIsaac Page 4 The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, (that is the Board), including, but not limited to, negotiations or renegotiations in general or as to contracts with the the Board; 2. Attempts to influence the Board; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee. 4. Participating in any matters before the Board over which there was supervision, direct involvement, or responsibility while employed by that governmental body; 5. Lobbying, that is representing the interests of any person or employer before the Board in relation to legislation, regulations, etc. The Commission has also held that listing one's 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 the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Board, is not prohibited as representation. 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, the activity in this respect should not be revealed to the Board. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Board to secure information which is available to the general public. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the governmental body the representation of, or work for the new employer. Finally, the Commission has concluded that the administering of an existing contract as opposed to negotiating Mr. George V. Maclsaac Page 5 or renegotiating a contract would not be prohibited by the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. As to the four specific questions which you pose, the first concerns whether you may do appraisals. The Ethics Law does not preclude the type of employment in which you engage after you terminate public service; however, you may not represent a person before the former governmental body with which you were associated. In applying that concept to the instant matter, you are not precluded in general from appraisal work but you may not do appraisals if they would be submitted to your former governmental because such appraisals would contain your name and they would be submitted by clients in an effort to influence the Board which would be contrary to Section 3(g) of the Ethics Law. As to when your term would actually end, you are deemed under the law to continue serving until another individual is appointed in your place. Therefore your termination of service occurred on August 15, 1989 and the one year restriction would run until August 15, 1990. Therefore, the restrictions of Section 3(g) would terminate on August 15, 1990 and at that time you could enter appeal forms scheduling hearings. As to your last inquiry, the Ethics Law would not restrict you doing appraisals for assessment appeals in other counties since the boards in those other counties would not be the governmental body with which you are associated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Board of Tax Revision and Appeals Commissioner, you are to be considered a "public official" as defined in the Ethics Law. Upon termination of service with the Board, you would become a "former public official" subject to the restrictions imposed by Section 3(g) of the Ethics Law. As such, your conduct should conform to the requirements of the Ethics Law as outlined above. The propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. George V. Maclsaac Page 6 such. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be for the year following 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 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 §2.12. Sincerely, 194 Vincent . Dopko, Chief Counsel