Loading...
HomeMy WebLinkAbout87-564 ConturoDear Ms. Conturo: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 14, 1987 ADVICE OF COUNSEL Mary K. Conturo, Esquire Eckert, Seamans, Cherin & Mellot 600 Grant Street, 42nd Floor Pittsburgh, PA 15219 Re: Former Public Employee; Section 3(e), Director, Urban Redevelopment Authority 87 -564 This responds to your letter of April 30, 1987, 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 the Urban Redevelopment Authority of Pittsburgh. Facts: You currently represent Mr. Harvey W. Young, the former director of the department of housing for the Urban Redevelopment authority of Pittsburgh. In this capacity you have requested the advice of the State Ethics Commission regarding whether there are any restrictions upon Mr. Young's activities in relation to a particular project in which he is involved. From April 1984 until July 1986, Mr. Young was the director of the department of housing for the Urban Redevelopment Authority of Pittsburgh, hereinafter the Authority. In this position, Mr. Young was the administrator in charge of planning, marketing, development, coordination and implementation of housing finance programs for the city of Pittsburgh. In July of 1986, Mr. Young resigned his position at the Authority. He is now the sole owner of H. W. Young & Co., a Pittsburgh area firm which operates as financial advisor to a number of institutions regarding the sale of commercial and residential mortgage backed securities. You advise that at the current time there is a proposal being made to the Pittsburgh foundation, a private charitable foundation. This proposal requests funds for the design and development of a program to encourage the growth of minority enterprises. The proposed project will be jointly sponsored by the Allegheny Conference on Community Development, a private non - profit corporation and the Urban League of Pittsburgh, a similar non - profit corporation. You further indicate that the Allegheny Conference Mary K. Conturo, Esquire May 14, 1987 Page 2 will be the grantee and the fiscal agent for the project. As part of the implementation of this project, the sponsors thereof, the Allegheny Conference and the Urban League, will enlist the help of three seperate entities including the URA, Charles Rile & Associates and H. W. Young & Company. It is intended that the economic development department of the URA will staff the working committee and the project director will be the Charles Rile & Associates Company. Mr. Young's company w i l l serve as project manager for the undertaking. Mr. Young's compensation would be negotiated directly with the sponsors, the Allegheny Conference and the Urban League. All compensation to Mr. Young's company would flow from the Pittsburgh foundation to the Allegheny Conference and then to one of the three entities noted above. You indicate that there would be no public monies involved in this project. You have requested the advice of the State Ethics Commission regarding what, if any, prohibitions would be placed upon Mr. Young in the instant situation. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law. As a director of housing, for the Authority, 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, as set forth in your letter of request 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 Walko, 86 -510. 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. Mary K. Conturo, Esquire May 14, 1987 Page 3 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 Ewinl, 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 until July 1987, 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: 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. Mary K. Conturo, Esquire May 14, 1987 Page 4 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 the Authority. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries 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. Mary K. Conturo, Esquire May 14, 1987 Page 5 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). Conclusion: As a director of the department of housing, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Urban Redevelopment Authority of Pittsburgh, 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 Authority generally. 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 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. 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. Sin ohn J. ontino Acting General Counsel