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HomeMy WebLinkAbout87-582 FrankMichael J. Frank The Almshouse Neshaminy Manor Center Doylestown, PA 18901 STATE ETHICS COMMISSION_ 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 June 3, 1987 ADVICE OF COUNSEL 87 -582 Re: Former Public Employee, Section 3(e), Director of Community Planning Dear Mr. Frank: This responds to your letter of May 26, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon you when you establish a consulting firm which will represent both municipal and private clients following your termination of employment as Director of Community Planning for the Bucks County Planning Commission. Facts: As the current Director of Community Planning for the Bucks County Planning Commission, you provide technical and planning assistance to various municipal planning commissions. Further, you and your staff review subdivision and land development proposals, zoning change requests, amendments to municipal ordinances and certain municipal and school district proposals. Technical and policy recommendations are made by you but you do not take any formal action to approve or deny requests or proposals. Your job description indicates that your prime responsibilities are to supervise your staff in carrying out the designated community planning duties, to assist the executive director in developing policies, to advise the county commissioners and local officials concerning planning activities, to coordinate community planning work with county wide plans, to develop new concepts and approaches to planning problems and possible solutions, and finally, to conduct contract work with local officials. You are required to train personnel and to develop educational programs for local officials and to compile and analyze statistical data for the preparation of reports and articles for publication. Lastly, you conduct land use and housing surveys and prepare reports of your findings. You prepare specifications for various facilities, prepare legal documents and notices, and perform any related duties that are necessary to carrying out the responsibilities of your position as Director. Michael J. Frank June 3, 1987 Page 2 You have requested the advice of the State Ethics Commission regarding what, if any, prohibitions would be placed upon you following your termination as Director of Community Planning followed by the creation of a consulting firm which would retain municipal and private clients. 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 Director of Community Planning for the Bucks County Planning Commission, 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. Consequently, upon termination of your 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. Initially, to answer your request it is necessary to identify the "governmental body" with which you were associated while working with the Bucks County Planning Commission, hereinafter the Commission. Then, the scope of the prohibitions associated with the term of "representation" must be reviewed. 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 Ewin, 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 Commission. Thus, the "governmental body" with which you have been "associated" upon the Michael J. Frank June 3, 1987 Page 3 termination of your employment would be the Commission. Therefore, within the first year after you would leave the Commission, Section 3(e) of the Ethics Act would apply and restrict your "representation" of clients before the Commission. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Commission. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Commission. It is noted, 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. 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 Commission), including, but not limited to, negotiations or renegotiations of contracts with the Commission; 2. Attempts to influence the Commission; 3. Participating in any matters before the Commission over which you had supervision, direct involvement, or responsibility while employed by the Commi ssion; 4. Lobbying, that is representing the interests of any person or employer before the Commission in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. Michael J. Frank June 3, 1987 Page 4 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 Commission, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Commission, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Commission so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Commission. Once again, however, your activity in this respect should not be revealed to the Commission. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Commission 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 Commission your representation of, or work for your clients. 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. Additionally, it i would prohibit any publ position of employment understanding that the working for his former 65 P.S. §403(b). s noted that Section 403(b) of the State Ethics Act is employee or public official from accepting a if said position has been offered based upon the official conduct of the employee or official, while governmental body, was influenced by such offer. See Conclusion: As Director of Community Planning of the Bucks County Planning Commission, you are considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Commission, 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 Commission generally. Further, when 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. Michael J. Frank June 3, 1987 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 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. Sincerely, Vincent J. 'opko General Counsel