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HomeMy WebLinkAbout80-726 Della GuardiaSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 21, 1980 ADVICE OF CHIEF COUNSEL Joseph L. Della Guardia, Esquire 612 Two Penn Center Plaza 15th & J. F. Kennedy Blvd. Philadelphia, PA 19102 80 -726 RE: Section 3(e), Deputy Commissioner, Philadelphia Dear Mr. Della Guardia: This responds to your inquiry of September 22, 1980. Issue: You request an opinion in regard to the extent of the prohibition contained in Section 3(e) of the Ethics Act as applied to a former public employee, a Deputy Commissioner for the City of Philadelphia, Department of Licenses and Inspections. Facts: You indicated that you served as one of the two Deputy Commissioners for the City of Philadelphia in the Department of Licenses and Inspections from March 31, 1975 until January 21, 1980. The Department of Licenses and Inspections is one of the ten operating departments in the City of Philadelphia. The Deputy Commissioners, such as yourself are appointed by the Mayor and serve at the pleasure of the Mayor. While the Commissioner has the responsibility for the entire department, each Deputy Commissioner has jurisdiction only over those sections within the department to which he is specifically assigned. In this capacity you were responsible for the following sections: The Bureau of Weights & Measures; Licenses Issuance section; the Enforcement section, and the Service and complaint section. The other Deputy Commissioner had jurisdiction over the remaining sections within the Depart- ment of Licenses and Inspections. These departments included: Field operations; the Building section; Mechanical services; Commercial and Industrial; and Zoning. With specific reference to this latter section, the Zoning section, it is noted that anyone aggrieved by the action taken by the Zoning section could appeal to the Zoning Board of Adjustment. Joseph L. Della Guardia, Esquire October 21, 1980 Page 2 You indicate that you had no specific involvement or jurisdiction over those areas other than those to which you were assigned. You had no involvement or jursidiction over those areas which were assigned to the other Deputy Commissioner. However, the Enforcement Section over which you had responsi- bility, did handle prosecution of violations of the codes which were within the jurisdiction of other Sections of your Department. In regard to the Zoning Board of Adjustment it must be noted that the Board consists of six members, five of whom are appointed by the Mayor while the sixth member is the Commissioner of the Department of Licenses and Inspections, as an ex officio member. While the Commissioner of Licenses and Inspections may substitute a Deputy Commissioner to serve on his behalf on the Zoning Board of Adjustments you indicate that you have not been so designated as the substi- tute for the Commissioner for some three years prior to your departure from the Department, January 21, 1980. You further note that any decision of the Zoning Board of Adjustment is considered a determination of an independent board which is appealable directly to court. Discussion: First it should be noted that there is no dispute or doubt that you are a "public employee as that term is defined in the Ethics Act. Therefore, as a "former public employee" you would be subject to the prohibitions found in Section 3(e) of the Ethics Act. This section indicates that no former public employee may represent any person on any matter before the governmental body with which he had been associated for a period of one year after he leaves that body. While the provisions of Section 3(e) of the Act are applicable, your specific question relates to the extent of prohibition in your case. Specifically, you inquire as to whether you are precluded from appearing before the Zoning Board of Adjustment and representing any person before that Board. Essentially, the question to be answered is the extent of your "governmental body." The Commission has in previous decisions indicated that Section 3(e) was to be interpreted to preclude representation before a "governmental body" over which the former employee had or could have had authority or influence. For example, in Kline, 79 -001 the former Lieutenant Governor of the Commonwealth was deemed to have been associated with the Senate, the Lieutenant Governor's Office, the Board of Pardons, the Governor's Office and all Joseph L. Della Guardia, Esquire October 21, 1980 Page 3 executive departments, boards, agencies and commissions. The extent of this prohibition and the reasons for the prohibition were based on the determination that the Lieutenant Governor was "associated with" the entities described. Likewise, the Commission has determined that the prohibition may extend to the whole department, where the individual involved worked in or with a whole department to the extent that he could be said to have "influence" over the entire Department. Cutt, 79 -023. We must note, two decisions of the Commission which are particularly pertinent in regard to your specific question of whether you may appear before the Zoning Board of Adjust- ment. These are Berger /Beaser, 79 -060 and Kuller, 80 -004. In Berger, a former member of the Law Bureau of the City of Philadelphia who represented primarily the Zoning Board of Adjustment was precluded from appearing or representing any person before the Zoning Board of Adjustment only, rather than the whole entity of the City of Philadelphia. Similarly, in Kuller, a former borough councilman was not precluded from representing any person before the borough's zoning hearing board. The Commission ruled that the zoning hearing board was not the same "governmental body" as the borough council and that, therefore, the provisions of Section 3(e) would not preclude the former borough councilman from repre- senting any person before the borough's zoning hearing board. Consequently, on facts as you have presented them, which indicate quire clearly that you had no authority or juridiction of the Zoning Board of Adjustment, you would not be precluded from appearing before that board or represen- ting any person before that board. Essentially, the term "governmental body" with which you had been associated is the Department of Licenses and Inspections - because you may be said to have "influence" within that Department. The independence of the Zoning Board supports its exclusion from the phrase "governmental body" in your case. Having decided that the Department of Licenses and Inspections constitutes the "governmental body" with which you had been associated, you should be advised that decisions of the Commission have addressed the question of what consti- tutes "representation." In particular, the decision rendered in Morris, 80 -039 generally indicates that: 1. personal appearance before the governmental body is prohibited for the one -year period; 2. attempts to influence the governmental body are prohibited for the one -year period; Joseph L. Della Guardia, Esquire October 21, 1980 Page 4 3. a former public employee or official is prohibited by the Ethics Act and the applicable provisions of the Code of Professional Responsibility from participating in any case over which he or she had supervision, direct involvement or responsibility while associated with the governmental body; 4. members of the former public employee's firm are not barred from representing clients before the governmental body with which the former public employee was associated; 5. general informational inquiries on matters which are subject to inquiry by the general public are not prohibited, even as to the governmental body named above; 6. former public employees are not barred from generally utilizing the knowledge and expertise gained from there tenure as public employees except as set forth above; 7. Appearance in a third form such as State or Federal Court is not prohibited. Incidentally, one final note as to your obligations under the Ethics Act should be made. Section 4(a) indicates that you must file a Statement of Financial Interest each year you are employed by a governmental body and by May 1 of the year after you leave a public employment. You should file such a statement by May 1, 1981. Conclusion: You are not prohibited by Section 3(e) of the Ethics Act from appearing before the Zoning Board of Adjust- ment for the reasons set forth above. The "governmental body" with which you were associated while serving as a Deputy Commissioner, City of Philadelphia, is the Department of Licenses and Inspections excluding the Zoning Board of Adjustment. As to this governmental body, you are prohi- bited from "representing any person" before the Department for a period of one year from the date you left the employ of the City of Philadelphia, January 21, 1980. The term "representation" is as set forth above, and you must not engage in any of the activities within categories 1, 2 and 3 above. Joseph L. Della Gaurdia, Esquire October 21, 1980 Page 5 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 avail- able 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, ndra S. Ch stianson General Cou el