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HomeMy WebLinkAbout84-633 DeGarciaFrank DeGarcia, City Councilman c/o Karen M. Balaban, Esq. Balaban & Balaban Governor's Row 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108 -1284 State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 December 12, 1984 ADVICE OF COUNSEL 84 -633 RE: Former Public Official, Section 3(e), Harrisburg City Councilman Dear Mr. DeGarcia: This responds to the letter of your Counsel of October 31, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment or activities following your termination of service with the Harrisburg City Council. Facts: Your Counsel on your behalf has submitted the following factual situation for our determination as to the existence or potential of a conflict of interest. You currently serve as a member of the Harrisburg City Council, hereinafter the Council. Frank Robino Associates Incorporated, hereinafter Robino, has been named as the preferred /potential developer of the new Fox Ridge Phase II of the Harrisburg Redevelopment Authority, hereinafter HRA. The Council has not, as yet, been required to confirm the naming of Robino as the preferred /potential developer. Under the Urban Redevelopment Law, 35 P.S. 1710, however, Council must approve all redevelopment contracts entered into with the HRA. Furthermore, there is a City of Harrisburg affirmative action Ordinance which requires a minimum 25% minority participation in all contracts approved by the City. Robino, with respect to the development of the new Fox Ridge Phdse II would be required to comply with the City's 25% minority participation standards. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Frank DeG rcia December 12, 1984 Page 2 It should be noted, however, that the Council does not approve all sub - contractors of a particular preferred /potential developer nor does Council approve a minority business enterprise which may be utilized by the developer in order to comply with the City's minority participation requirements. Essentially, HRA picks the developer and then that developer must certify compliance with the minority business enterprise participation policies of the City, but the Council does not name, review, or approve the selection of the sub - contractors or the minority business enterprises who may be utilized by the developer. You intend to resign from Council in order to establish and operate a miniority business enterprise. Additionally, it is your intention to submit bids as a minority sub - contractor to Robino. This sub - contract as outlined above, would not require the approval of Council. Finally, you note that you did not take office as a Councilman until January 3, 1984. Therefore, you did not, as a member of Council, participate in any Council approvals as to designation of Robino as the developer of Phase I of the Fox Ridge Project nor have you ever voted on any matter directly or indirectly related to Robino since your assumption of Council office. You note that you intend to abstain from voting on any future contracts or matters dealing with Robino and the Fox Ridge project, in general. Even given these cautions which you intend to observe you, through your Counsel pose the following questions: 1. May you initiate any negotiations with Robino prior to resigning from Council? 2. Are you prohibited under Section 3(e) of the Ethics Act for the one year period set fourth in that Section from participating as a party to a contract with the HRA and /or from participating as a sub- contractor under a contract between another party and HRA. Discussion: As a Councilman for City of Harrisburg, you would, be considered to be a "public official" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. See Section 2 of the Ethics Act, 65 P.S. 402 and the regulations of the Commission set forth at 51 Pa. Code 1.1. Consequently, if you were to terminate or upon termination of this office, 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: Mr. Frank DeGarcia December 12, 1984 Page 3 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 we must identify the "governmental body" with which you were associated while serving on Council. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". 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 employment extends not to those entities where he may have had contact or acquired acquaintances and colleagues but only to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From your position and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to Council and the other divisions and entities within the legislative branch of the City government collectively rererred to below as the Council. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your service with the City would be the Council. Therefore, within the first year after you would leave the City, Section 3(e) of the Ethics Act would apply and restrict your activity of "representation" of persons or new employers vis -a -vis the Council. The Ethics Act would not affect your ability to appear before agencies or entities within the City or otherwise other than with respect to the Council. Likewise, there is no general restriction against your seeking employment and engaging in private work or supplying services to clients or employers, in general, following your retirement or departure from the Council. You may not, however, "represent" any new employer or client before the Council as described more fully below for the first year after you leave the City government. Mr. Frank DeGarcia December 12, 1984 Page 4 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 employe. 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 deemed to have been associated, that is the Council , including, but not limited to, negotiations or renegotiations on contracts with the Council; 2. Attempts to influence the Council; 3. Participating in any matters before Council on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while serving the City; 4. Lobbying, that is representing the interests of any person or employer before the Council in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing as preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, to be submitted to or reviewed by the Council, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave City service, you should not allow your name to appear on proposals, documents, or bids, either as the preparer or as the person who will provide technical assistance on these documents, proposals, bids, etc., which will be presented to the Council or which will be reviewed by the Council. 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 Council , is not prohibited as "representation." See Kotalik, 84 -007. You may, even under the above restrictions, assist in the preparation of any documents presented to the Council and assist in the preparation associated with appearances to be made by a person, other than yourself, Mr. Frank DeGarcia December 12, 1984 Page 5 before the Council so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Council to secure information which is available to the general public. See Cutt, 79 -023. Likewise, 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. This would be true even if your administration of a contract involved dealing with personnel of the Council or personnel within the City generally. See Dalton, 80 -056 and Beaser, 81 -538. Assuming that the above discussion has answered your question Number 2 as posed by your Council we must also address and respond to your question Number 1. Of course, the observing restrictions which you cite above with respect to abstaining from matters relating to Robino while you remain on City Council is advisable. In this regard it would be advisable to refrain from initiating in any negotiations with Robino prior to resigning from Council. This restriction is particularly important insofar as Section 3(a) of the Ethics Act may be implicated. Section 3(a) of the Ethics Act states that you may not use your public office to secure any financial gain for yourself or a business with which you are associated. In order to avoid any conflict of interest or appearance of a conflict of interest between your public responsibility, the abstention which you indicate you will undertake, would be required. Likewise, any substantial effort at negotiating with Robino prior to resigning from Council might be view as a an appearance of a conflict insofar as Section 1 and Section 3(b) of the Ethics Act would be applicable. Section 1 and 3(b) provides as follows: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Mr. Frank DeGarcia December 12, 1984 Page 6 Section 3. Restricted activities. (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. 403(b). Under Section 1 and Section 3(b) any efforts to negotiate with Robino while remaining on Council could give rise to constitute an appearance of a conflict of interest between your financial interests and the public-trust that you must still serve as a member of Council. Specifically, you should not place yourself in a situation where the possibility exists that a promise of future emloyment could be said to influence your official judgment as a member of City Council. Conclusion: As a City Councilman, you are to be considered "public official" as defined in the Ethics Act. Upon termination of your service with City Council, 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. Should you remain on City Coucil you should, as you have indicated you will, abstain from taking official action with respect to Robino and you should, as a further caution, undertake no regotiations with respect to Robino prior to resigning from City Council. Further, should you terminate your association with City Coucil as outlined above, you are reminded that the Ethics Act also requires that as a public official you must file a Statement of Financial Interests for each year in which you hold the position described above, and 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. Mr. Frank DeGarcia December 12, 1984 Page 7 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 /sfd Si cerely, andra S. Christianson General Counsel