HomeMy WebLinkAbout86-558 EvansMr. Walter C. Evans
716 Ridge Pike
Lafayette Hill, PA 19444
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108-1470
TELEPHONE (717) 783 -1610
May 16, 1986
ADVICE OF COUNSEL
86 - 558
Re: Former Public Employee; Section 3(e), Planning /Zoning Officer, Township
Dear Mr. Evans:
This responds to your letter of April 22, 1986, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment following your termination of service with the
Whitemarsh Township Planning Department.
Facts: You advise that you had resigned from your position as Whitemarsh
Township, Montgomery County, Planning and Zoning Officer and as Secretary to
the Whitemarsh Township Zoning Hearing Board on June 7, 1985. You indicate
that shortly thereafter, you entered into an employment agreement with the
Whitemarsh Township Roard of Supervisors to provide professional planning
services as an independent contractor on an as needed basis. You remained in
this capacity until March 31, 1986. You now advise that, have been
approached by various individuals who wish to retain your private services in
order to proceed with various planning projects within Whitemarsh Township.
As a result of the foregoing, you have requested the advice of the State
Ethics Commission as to the following:
1. Whether you may participate in planning of research projects not
involving representation before a governmental body of Whitemarsh
Township.
2. At what point in time would you be ahle to represent individuals
hefore the Whitemarsh Township Roard of Supervisors.
3. At what point in time would you he ahle to represent individuals
hefore the Whitemarsh Township Zoning Hearing Board.
Mr. Walter C. Evans
May 16, 1986
Page 2
4. Are you required to file a Statement of Financial Interests for
calendar year 1986 as a result of the work undertaken for Whitemarsh
Township from January to March, 1986.
As part of this response, we have reviewed your job description which
sets forth the functions that you performed in your position as planning and
zoning officer. In your position with the township you were responsible for
performing technical planning work and admi nistrative functions i nvolvi ng the
township zoning ordinance. You were generally under the supervision of the
township manager. Generally, you provided professional service to the
township planning commission, zoning hearing board, Shade Tree Commission and
the township board of supervisors. You were involved in coordinating the
review and approval of subdivision and zoning change request as well as
preparing amendments to various zoning codes. You were involved in directing
the community development block grant projects and grant seeking activities
for open space, housing renewal and planning monies. In addition to the
following, you were responsible for implementing approved land use plans and
coordinating overall community development operations.
While you have not provided any information with relation to the service
that you performed for the township board of supervisors from June of 1985
until March of 1986, we will assume, for the purpose of this advice, that you
continue to be an employee of the township in you position with the board of
supervisors. As such, the advice that is rendered herein will be based upon
that assumption.
Discussion: As a Planning and Zoning Officer for Whitemarsh Township,
hereinafter the Township, you are to be considered a "public employee" within
the definition of that term as set forth in the Ethics Act and the regulations
of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based
upon your job description, which when reviewed on an objective basis,
indicates clearly that you have the power to take or recommend official action
of a non - ministerial nature with respect to contracting, procurement,
planning, inspecting or other activities where the economic impact is greater
than de minimus on the interests of another person. See, Simmons, 79 -056.
Consequently, upon termination of this employment, you would become a
"former public employee" subject to Section 3(e) of the Ethics Act. Section
3(e) of the Ethics Act provides that:
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.
Mr. Walter C. Evans
May 16, 1986
Page 3
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with Whitemarsh Township.
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 he
deemed to have been associated during his tenure of public office or
employment extends to those entities where he had influence, responsibility,
supervision, or control. See Ewi ng, 79 -010. See also, Kury vs. Commonwealth
of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981).
From the description and analysis of your duties and responsibilities and
based upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been within the Township generally.
Specifically, upon reviewing your job description for the period of time which
you served as a townhsip zoning officer your duties and responsibilities
included providing professional service to the township planning commission,
the zoning hearing board, the Shade Tree Commission and the township board of
supervisors. Thus, the "governmental body" with which you have been
"associated" upon the termination of your employment would be the Township
generally. Therefore, within the first year after you would leave Whitemarsh
Township, Section 3(e) of the Ethics Act would apply and restrict your
"representation" of persons or new employers vis -a -vis the Township.
At this point it should be noted that generally Section 403(e) of the
Ethics Act, cited above, would prohibit an individual from representing any
person before his governmental body for a period of a year after he leaves the
township. This prohibition would include representing his own private
business enterprise before his former governmental body in an attempt to
obtain a contract with that governmental body. This Commission has, in the
past, determined that if an individual, after his termination of employment
with his former governmental body, obtains a consulting contract or other type
of contract with his former governmental within the one year period, Section
403(e) of the Act has. been violated. The Commission, however, has also
indicated that if an individual obtains a different level of employment with
his former governmental body or continues to serve his governmental body for
only a reasonable period of time while it is in transition, then Section
403(e) of the State Ethics Act has not been violated. See, McClellan, 86 -551.
In the instant situation, we will assume that the work that you performed for
the township board of supervisors, after your resignation from the zoning
hearing board, was a continuation of your public employment and, therefore,
not in violation of Section 403(e) of the State Ethics Act. Based upon this
assumption, we will assume that your duties for the township board of
supervisors involved similar activities to the activities that you performed
while working for the zoning hearing board and, therefore, your
responsibilities would have included participating in matters that involved a
review of zoning hearing board items and other matters emanating from that
source. As a result, your goverrmental body would continue to be the Township
Mr. Walter C. Evans
May 16, 1986
Page 4
generally, including the zoning hearing board and any other board or
commission with which you were involved during your service for the township
board of supervisors. As a result, we will assume that you are a continued
public employee during the period of time until March of 1986 and that your
one year representation restriction would be calculated from that period of
time. Thus, the Section 403(e) restrictions would apply to the township board
of supervisors as well as to the township zoning hearing board based upon our
previous assumption until March of 1987.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Township. Likewise, there is no
general limitation on the type of employment in which you may engage following
your departure from the Township. We do note, 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 new employer, treatment or benefits that
may be obtainable only because of his association with his former public
employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction 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, lobbyi ng, 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 associated, (that is the Township, including, but not
limited to, negotiations or renegotiations on contracts with the Township);
2. Attempts to influence the Township;
3. Participating in any matters before the Township over which you had
supervision, direct involvement, or responsibility while employed by the
Township;
Mr. Walter C. Evans
May 16, 1986
Page 5
4. Lobbyi ng, that i s representing the i nterests of any person or
employer before the Township in relation to legislation, regulations, etc.
See Russell, 80 -048 and Seltzer, 80 -044.
The Commission has also held that preparing and signing a proposal,
document or bid, or listing your name as the person who will provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
the Township, constitutes an attempt to influence your former governmental
body. See Kilareski, 80 -054. Therefore, within the first year after you
leave the Township, you should not engage in the type of activity outlined
above.
You may, assist in the preparation of any documents presented to the
Township so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Township.
Once again, however, your activity in this respect should not be revealed to
the Township. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Township to
secure information which is available to the general public. See Cutt,
79 -023. This, of course, must not be done in an effort to indirectly
influence these entities or to otherwise make known to the Township your
representation of, or work for your new employer.
Finally, 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. See Dalton, 80 -056 and
Beaser, 81 -538.
With relation to the filing of the Statement of Financial Interests,
because we have determined that your continued employment with the Township
was sufficient to alleviate any 403(e) concerns that may have arisen as a
result of your obtaining a retainer contract with the township board of
supervisors, we believe that you continue to be a public employee within the
definition of the State Ethics Act. Therefore, you must file a Statement of
Financial Interests for calendar year 1986. That is you should have filed a
Statement of Financial Interests by May 1, 1986 for calendar year 1985 and
additionally, you should file a similar statement in May of 1987 for calendar
year 1986.
Additionally, we note that Section 403(b) of the State Ethics Act would
prohibit any public employee or public official from accepting a position of
employment if said position has been offered based upon the understanding that
the official conduct of the employee or official, while working for his former
governmental body, was influenced by such offer. See 65 P.S. §403(b).
Mr. Walter C. Evans
May 16, 1986
Page 6
Conclusion: As a Planning and Zoning Officer, you are to be considered a
"public employee" as defined in the Ethics Act. Upon termination of your
service with Whitemarsh Township, you would become a "former public employee"
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. Your governmental body for the purpose of the one year
representation restriction is the Township generally, including the zoning
hearing board and the one year is calculated from your final termination date
of March 30, 1986.
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 made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
n J.
Gener. ounsel