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HomeMy WebLinkAbout84-533 Van DykeCarter Van Dyke c/o Carter Van Dyke Associates 40 Garden Alley Doylestown, PA 18901 Dear Mr. Van Dyke: Mailing Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 8, 1984 ADVICE OF COUNSEL 84-533 RE: Former Employee, Section 3(e), Restricted-Activites, Bucks County Planning Commission This responds to your letter of February 24, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Act presents any restrictions upon your activity as a former employee of the Bucks County Planning Commission, hereinafter, the Commission. Facts: You indicate that you recently left your position as a senior planner with the Commission to start your own planning and landscape architect practice. You have enclosed a copy of your job description which was applicable to your position with the Commission and that job description is incorporated herein by reference. You indicate that you are one of the two senior planners who reported to the chief of community planning who in turn reported to the Executive Director of the Commission. While employed by the Commission, the planning staff consisted of five to seven planners who you supervised along with the other senior planner and the chief of the Community Planning Office. You indicate you understand that in the year following your termination of employment with the Commission, you may not personally represent clients before the Bucks County Planning Commission or its staff. However, you question whether the Ethics Act would prevent you or your firm from representing clients before a local municipality or from initiating planning assistance contracts with municipalities in Bucks County. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Carter Van Dyke March 8, 1984 Page 2 Discussion: Based upon your job description and the definition of "public employee" as contained in the Ethics Act, it is clear that you were to be considered a "public employee" during your tenure with the Commission. Therefore, upon termination of your service with the Commission, you became a "former public employee." As a "former public employe" your conduct must conform to the requirements of Section 3(e) of the Ethics Act as set forth below: (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(e). As a former public employee you must, for the first calendar year following your termination of employment with the Commission, refrain from "representation" as the Commission has further defined that term vis -a -vis those governmental bodies with which you may have been "associated" while employed by the Commission. We must, in order to answer your request, ask the following questions: 1. What is the scope of the term and activity known as "representation ?" 2. To which governmental bodies do the restrictions and prohibitions against representation extend in your case? We will address this latter question first. It is clear that your responsibility as a senior planner extended to the Bucks County Planning Commission and, therefore, we must conclude that the governmental body with which you were associated while employed by the Commission was the Commission itself. Thus, you must observe the restrictions against "representation" as set forth in Section 3(e) with respect to the Commission and its staff. However, these restrictions, vis -a -vis the Commission, relate only to the Commission and its staff, as you recognize. There are no restrictions against you or your firm representing any client before local municicpalities or initiating planning assistance contracts with municipalities in Bucks County, in general. You are, however, precluded from personnally representing any person before the Commission or its staff for the one -year period following your termination of employment with the Commission. With respect to the scope of the term "reperesentation" the Commission has determined that the prohibited activity defined as "representation ", in addition to the definition of that term in our regulations, applies to such activities as: Carter Van Dyke March 8, 1984 Page 3 1. personal appearances before the governmental body with which you were associated, including but not limited to negotiations or re- negotiations on contracts; 2. attempts to influence the governmental body (the Commission) with which you were associated; 3. participating in any manner before the governmental body with which you are associated in any case or matter over which you had supervision, direct involvement or responsibility while employed with the Commission; 4. lobbying, that is representing the interests of any person before the governmental body with which you were associated in relation to legislation, regulations, etc. It should be noted, that the mere act of preparing and signing with your own name or having your name appear as the person who will serve in regard to a proposal (such as technical advisor on the proposal) has been held to constitute an attempt to influence your former governmental body should such a proposal be presented to or reviewed by that body. Therefore, such activity, vis -a -vis the Commission, is prohibited. See Kilareski, 80 -054. This is because the inclusion of your name as preparer or technical advisor on such a proposal to be submitted to the Commission with which you have been associated has the potential for influencing the decision of the Commission. Also, where you know or should know that a submission or proposal that you might make on behalf of a client to another entity other than the Commission might be reviewed by the Commission, your name should not appear on such a proposal. Anderson, 83 -014. While the above - referenced restrictions apply to you for the one -year period following your termination of service with the Commission vis -a -vis the Commission, you may, nevertheless, undertake your own planning and landscape architect practice and may, within the one -year period following your termination of service with the Commission, engage in the following activities: A. You may administer rather than to negotiate or re- negotiate any contract that exists or that is to be awarded to your firm or to any client so long as the contract or sub - contract is or was awarded or entered into witnout the inclusion of your name as noted above. B. You may make general informational inquiries of the Commission or its staff as long as there is no attempt to influence the Commission or its staff as prohibited above. Carter Van Dyke March 8, 1984 Page 4 C. You may utilize the knowledge and expertise gained during your tenure as a public employee so long as you do not use any confidential information gained during your service as a public employee. D. You may appear and represent any person on behalf of any client or new employer before any entity or governmental body except the Commission or its staff with which you have been associated as outlined above. Basically, your employment by other municipalities within Bucks County whether to represent these clients or local municipalities or to initiate planning assistance contracts with them is not generally prohibited by the Ethics Act. However, your conduct vis -a -vis the Bucks County Planning Commission and its staff with respect to personal "representation" before that Commission and its staff as set forth above must be observed. Conclusion: Upon your termination of service with the Commission, you will have become a "former public employee" subject to the restrictions imposed by the State Ethics Act in Section 3(e) thereof. Your conduct as a former public employee must conform to the requirements of the State Ethics Act as described in this Advice and you should take note of the prohibited and allowable activities as discussed above. Also, as a former public employee, you must file a Statement of Financial Interests for each year that you held the position described above, and for the year following your termination of service. Thus, a Statement of Financial Interests should be filed no later than May 1, 1984, which represents the filing required for the year during which you held your position and a Statement of Financial Interests would be required to be filed by May 1, 1985, which would record information for the year following your termination of service with the Commission. 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. Carter Van Dyke March 8, 1984 Page 5 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 made, in writing, to the Commission within 15 days of .service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp Sincerely, i VMAL6-0 andra 5. nson General Counsel