Loading...
HomeMy WebLinkAbout86-620 DeFilippoMr. Anthony J. feFilippo 1615 Ehen Street Pittshurgh, PA 15226 near Mr. fleFi l i ppo: Marling Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 November 5, 1986 ADVICE OF COUNSEL 86 -620 Re: Former Puhlic Employee, Partner in Project, Involvement in Project as Puhlic Employee This responds to your letter of October 8, 1986, wherein you requested the advice of 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 Allegheny County Redevelopment Authority. Facts: On May 30, 1986, you terminated your employment with the Redevelopment Authority of Allegheny County. You were employed by that entity as a Financial Advisor and Program Coordinator for the United States Housing and Ilrhan Development Rental Rehahilitation Program. While employed by the redevelopment authority, you were involved in the initial stages of the Woodland Terrace Project. Generally, in February of 1985, efforts were heing made to assist the owners of this rental project with rehahilitation financing related thereto. Numerous attempts were made to secure funding for that project. Initially, Richard Railon of the Woodland Terrace Association had contacted the authority for assistance in relation to that matter. You were the individual who was assigned to that particular aspect of this project. Woodland Terrace Association wanted to obtain financial aid in repairing their units which were becoming deteriorated in experiencing a severe vacancy prohlem as a result. After viewing the units in March of 1985, you suggested a bond issue combined with some rental rehabilitation funds as a possihle solution. The association, thereafter, hired James McCarthy as a consultant to prepare the federal housing authority's application for insurance to secure these bonds. You, along with other authority staff, attended various meetings with HUD staff in support of this project. The efforts in this respcet, however, were unsuccessful and the application was rejected. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania mr. Anthony J. feFi l i ppo Novemher 5, 19R6 Page 2 After the rejection of the application, a new plan for the program was developed using funds from state, county and other puhlic sources. Once again you attended various meeting with other redevelopment authority staff and representatives from the various puhlic agencies. You assisted in the preparation of an application for state funds and you, generally, were in support of this project. Sometime thereafter, Woodland Terrace Association withdrew from its attempt to complete this project and announced that it would he selling the project. You, along with other members of the redevelopment authority staff contacted local developers to see if anyone would attempt to continue with the project. During this time, contact was made with Mr. Robert (lodge, who was interested in initiating the project along with his partner, Comprehensive marketing Systems. You were involved in the initial stages in an effort to convince Mr. Dodge to enter into this project. You have suhmitted information indicating that sometime prior to this meeting you had suhmitted your resignation to the redevelopment authority. You were intending to enter into the private real estate and consultant field. On August of 19R6, after you had terminated your employment with the authority, you were contacted hy Mr. Dodge, who advised that his partner would not he a'nle to participate in the project. Mr. nodge then inquired as to whether you would he interested in filling that role. You have now requested the advice of the State Ethics Commission in relation to the above situation. Specifically., you have requested advice as to whether the State Ethics Act would present any prohihitions upon your involvement in this project as a partner and you have also requested the advice regarding any restrictions that may he imposed upon your future dealings with the Allegheny County Redevelopment Authority. Discussion: As program administrator for the Rental Rehahilitation Program Division of the Allegheny County Redevelopment Authority you are clearly a public employee as that term is defined in the State Ethics Act. 65 P.S. b4n2. As such, your conduct must conform to the requirements of that law. Sossong, R5 -5R6. Initially, we will review the prohibitions of the State Ethics Act regarding your involvement in this project while still employed hy Allegheny County Redevelopment Authority, hereinafter the Authority. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No puhlic official or puhlic employee shall use his puhlic office or any confidential information received through his holding puhlic office to obtain financial gain other than compensation provided hy law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 4n3(a). Mr. Anthony J. DeFilippo November 5, 1986 Page 3 Within the above provision of law, as a public employee, you would be prohibited from using your public position or any confidential information obtained in that position in order to obtain any financial gain for yourself or a business with which you are associated. Thus, as a public employee you would have been prohibited from using confidential information obtained in your position or any other aspect of your office to obtain a benefit for the project in which you are now involved if you had a reasonable expectation that you would be involved with that project while you were still a public employee. In the instant situation, from the facts, it appears and we, therefore, shall assume that while employed by the authority, no funds were disbursed to this particular project in which you are now involved. Additionally, it does not appear as though the applications for this specific project have yet been submitted and, therefore, it does not appear that you would have used your position in relation to this project. However, you are reminded as to the provisions regarding the use of confidential information and should adhere to the requirements of the State Ethics Act in relation thereto. In addition to the foregoing, we also noted that the Sate Ethics Act provides as follows: 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 c,f the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 4 03(b). We make reference to this particular provision of law not to imply that there has been any violation thereof but merely to provide a complete response to your question. As a result of the above, it appears as though the Ethics Act would present no per se prohibition upon your subsequent employment and involvement with Mr. Dodge in relation to the project which was formally known as the Woodland Terrace Project. It should be noted that the State Ethics Act does present certain restrictions upon former public employees. As a former public employee you would be subject to Section 3(e) of the State Ethics Act, which provides as follows: Mr. Anthony J. DeFilippo November 5, 1986 Page 4 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(e). Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Authority. 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 office or employment extends 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 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 exercised within the Authority. Thus, the " governmental body" with which you have been "associated" upon the termination of your employment would be the Authority. Therefore, within the first year after you would leave the Authority, Section 3(e) of the Ethics Act would .apply and restrict your "representation" of persons or new employers vis -a -vis the Authority. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Authority. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Authority. 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: Mr. Anthony J. DeFilippo November 5, 1986 Page 5 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 associated, (that is the Authority), including, but not limited to, negotiations or renegotiations on contracts with the Authority; 2. Attempts to influence the Authority; 3. Participating in any matters before the Authority over which you had supervision, direct involvement, or responsibility while employed by the Authority; 4. Lobbying, that is representing the interests of any person or employer before the Authority 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 Authority, constitutes an attempt to influence your former governmental body. See, Kilareski, 80 -054. Therefore, within the first year after you leave the Authority, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Authority so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Authority. Once again, however, your activity in this respect should not be revealed to the Authority. Of course, any ban under the Ethics Act would not prohibit or preclude you from maki ng general i nformational i nqui ries of the Authority 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 Authority 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. Mr. Anthony J. DeFilippo November 5, 1986 Page 6 Conclusion: As a Financial Advisor /Program Coordinator for the Allegheny County Redevelopment Authority, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Allegheny County Redevelopment Authority, 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 Allegheny County Redevelopment Authority. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termi nation 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. 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. JJC /sfd Sinc - - y, John J. .nti Genera Counsel