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HomeMy WebLinkAbout90-501 WileySTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 5, 1990 Mr. Robert N. Wiley, Director Philadelphia Parking Authority On- Street- Parking 344 N. Broad Street Philadelphia, PA 19102 Re: Former Public Employee; Section 3(e), Philadelphia Parking Authority, Bureau Director 90-501 Dear Mr. Wiley: This responds to your letter of December 11, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon your employment following your termination of service with the Philadelphia Parking Authority. Facts: You are currently the Director of the Bureau of On- Street Parking for the Philadelphia Parking Authority, hereinafter Authority. Your position involves planning, directing, and coordinating the work of the On- Street Parking Bureau and, in that capacity, you are responsible for all on- street operations including meters, regulations, ticketing, towing, booting and communications. Between October 1984 and January 1988 you were Chief of Enforcement for the Authority and, in that capacity, were responsible for insuring the operation of booting, towing, ticketing and communications branches. Between August of 1983 and October 1984 you managed the ticketing branch of the Bureau of On- Street Parking. Prior to your service with the Authority, you implemented and supervised the towing program for the Department of Transportation in Washington, D.C.. As head supervisor of ticketing between September 1978 and April 1982 your duties consisted of training all new ticket writers, supervisors, and court liaison persons. In the course of your duties as director you had contact with the Police Department, Mayor's Office, Managing Directors Office, Streets Department, Traffic Court and various other City, State and Federal agencies. You are now contemplating employment with Lockheed Information Management Services Company (Lockheed IMS) as a national Mr. Robert N. Wiley, Director Page 2 consultant wherein you would work out of the Washington D.C. office and serve as a parking management consultant in various cities in which Lockheed IMS provides parking ticket processing or parking management consulting services. As a wholly owned subsidiary of Lockheed Corporation, Lockheed IMS provides full service ticket processing service to over a hundred cities nationwide including Philadelphia, Los Angeles, Washington, D.C., Boston, New Orleans, Dallas, Denver, Cleveland and Columbus, Ohio. Since 1982, Lockheed IMS has been under contract with the Authority to provide technical services required for the operation of the On- Street Parking Program and provides data processing support for the operation of the Authorities. Bureau of On- Street Parking which includes the processing of parking tickets issued for illegal parking and a system for the collection of processing of fines and penalties imposed for illegal parking. You have not been involved with the selection of Lockheed IMS as an Authority employee nor were you involved in negotiating contract renewals for Lockheed IMS. You have not been directly involved in the monitoring of the Lockheed IMS contract or in preparing or authorizing payments to the vendor. As a Lockheed IMS consultant you do not intend to work in the Philadelphia region with the Authority for at least one year if so advised. The Authority is a body politic and corporate organized under the State Parking Authority Law, the Act of June 5, 1947, P.L. 458, as amended, which has been established pursuant to an Act by the Ordinance of the City Council of Philadelphia approved on January 11, 1950. You conclude by requesting advice as to whether you may join Lockheed IMS in the role of a consultant to their city clients and secondly whether you may work for the Authority as a Lockheed IMS consultant and if so what point in time. Discussion: As a Director for Bureau of On- Street Parking for the Authority, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. 5402; 51 Pa. Code 51.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of employment, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Mr. Robert N. Wiley, Director Page 3 Section 3. Restricted activitiel. (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. S402. Initially, to answer your request the governmental body with which you were associated while working with the Authority 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. S402 Thus, the governmental body with which you have been associated upon the termination of employment would be Authority. Therefore, within the first year after termination of service with Authority, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis Authority. The Ethics Law does not 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 , Mr. Robert N. Wiley, Director Page 4 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. 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 Authority), including, but not limited to, negotiations or renegotiations in general or as to contracts with the Authority; 2. Attempts to influence the Authority; 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 Authority 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 Authority in relation to legislation, regulations, etc. Xr. Robert N. Wiley, Director Page 5 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 Authority 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 Authority, is not prohibited as representation. You may, assist in the preparation of any documents presented to the Authority so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Authority. Once again, however, the activity in this respect should not be revealed to the Authority. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Authority 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 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 and 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. Therefore, as outlined above, you are not precluded from joining Lockheed IMS as a consultant for city clients, however, you may not represent Lockheed IMS before the Authority for a period of one year after termination of your service. 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. Conclusions As a Bureau Director of the Authority, you are to be considered a "public employee" as defined in the Ethics Law. Mr. Robert N. Wiley, Director Page 6 Upon termination of service with the Authority, you would become a "former public employee" 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. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed 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 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 §2.12. cerely, Vincent . Dopko, Chief Counsel