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HomeMy WebLinkAbout81-589 FoxMailin Address: STATE ETHICS COMMISSION` P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 July 15, 1981 ADVICE OF COUNSEL John M. Fox Codes Consultant Department of Community Affairs 413 State Office Building Pittsburgh, PA 15222 81 -589 RE: Restrictions, Representation Dear Mr. Fox: This responds to your communication of June 26, 1981. Issue: In that communication you requested advice from the State Ethics Commission regarding your duties and responsi- bilities as a "former public employee" under the Ethics Act. Facts: You indicate that you have been furloughed by the Department of Community Affairs due to a cut -back in funds effective June 30, 1981. You plan to offer consulting services to local governments of a type similar to those you provided while with the Department of Community Affairs. While employed by the Department of Community Affairs you worked as a Code Consultant Examiner I. Your job was to: 1. Provide technical and administrative assistance to local government units, relative to adoption of building and related codes. 2. Work with the local Solicitor in structuring the appropriate ordinaces as they relate to the various codes. 3 Assist in preparation of multi - community codes program applications for funds which are made available through the Department in which you work. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania John M. Fox July 15, 1981 Page 2 4. Make recommendations as to the proper model code which meets the needs of a particular community, fee schedules, enforcement procedures, training codes, personnel, and such other help as to make the program operational, Discussion: The State Ethics Act defines a "public employee" as any individual employed by the Commonwealth who is responsible for taking or recommending official action of a non - ministerial nature with regard to planning, zoning, inspecting, licensing and regulating or auditing any person, among other things. These criteria are directly applicable to your §ituation as a Codes Consultant. Accordingly, we conclude that you are a "public employee" within the meaning of the Ethics Act. As a "public employee" within the coverage of the Ethics Act, your conduct upon terminating your service with the Commonwealth must conform to the requirements of the Ethics Act. These requirements include complying with the provisions of Section 3(e) of the Ethics Act, 65 P.S. 403 (e) . Section 3(e) provides that: "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). The Commission has determined that the concept of the "governmental body" with which an individual has been associated is that entity with which he or she may have exerted "influence." In your case, your job description appears to limit your responsibilities and therefore, your "influence ", to the Department of Community Affairs (here- inafter, the "Department "). Accordingly, you may not represent any person with or without compensation before the Department for the one -year period following your termina- tion of service with the Commonwealth. The term "representation" has also been further inter- preted by opinions of the Commission. Specifically, this term has been held to preclude, for the one -year period, the following activities: John M. Fox July 15, 1981 Page 3 1.. Personally appearing before the governmental body with which you were associated, including but not limited to negotiations on contracts; 2. Attempting to influence that body; 3. Participating in any manner in a specific case, matter or contract over which you had supervision, direct involvement or responsibility while employed with the governmental body; 4. Lobbying, that is representing the interests of any person, before that governmental body as to legislation, regulations, etc. See Morris, 80- 039 and Russell, 80 -048; 5. Signing and submitting under your own signature proposals, contracts, or other items to the Department; 6. Including your name on a bid proposal as an individual who would be involved in administering any contract to provide technical assistance which is subject to the proposal. See Dalton, 80 -056 and Kilareski, 80 -054. While these restrictions must be imposed you may, however, engage in the following activities: 1. You may administer, rather than negotiate, any contract that is to be awarded to any future employer or client (local government, for example) by the Department so long as that contract is awarded without your name being included as noted in items 5 and 6 above. 2. You may make general informational inquiries of the Department so long as no attempt is made to influence the Department as noted above. 3 You may utilize the knowledge and expertise gained during your tenure as a public employee vis -a -vis consulting clients except as set forth above. 4. You may appear and represent any person on behalf of any client or a new employer before any govern- mental agency other than the Department except as set forth in No. 3 above. John M. Fox July 15, 1981 Page 4 Conclusion: As a former public employee your conduct should be guided by this Advice. The prohibitions and the activities allowable are noted above and should be met. In addition, as a former public employee you are required to file a Financial Interest Statement for each year that you hold office and the year following your termination of service. Accordingly, such a Financial Interest Statement should be filed no later than May 1, 1982. 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 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 cc: Shirley M. Dennis, Secretary Department of Community Affairs Sincerely, andra S. "'stianson General Co -el