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HomeMy WebLinkAbout87-592 BalderstonMs. Bettylou Balderston 322 Route 46- West Parsippany, NJ 07054 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 July 2, 1987 ADVICE OF COUNSEL Re: Former Public Employee; Section 3(e), Borough Manager, Investment /Development Firm Dear Ms. Balderston: 87 -592 This responds to your letter of June.. 1, 1987, .i n 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 Borough of New Hope. Facts: On December 31, 1986 you resigned your position as borough manager of New Hope, Bucks County, Pennsylvania. At that time you became employed by with an investment /development firm in Northern New Jersey known as Condor Properties. You note that one of the projects purchased by your employer was an undeveloped site in New Hope Borough. In your capacity as project coordinator for Condor Properties, you ask what restrictions would be imposed upon you following the termination of your employment with the Borough. New Hope Ordinance No. 232, which outlines the job description for the position of borough manager, is incorporated herein by reference. Section 6 of Ordinance No. 232 provides that the manager shall be the chief administrative officer of the borough and shall be responsible for the efficient administration of the affairs of the borough and the implementation of policy and programs as set forth by borough council. The duties and authority of the borough manager shall relate to those matters of general management except for those duties that.are specifically imposed by statute, resolution or ordinance upon the borough officers themselves. The borough manager shall also exercise those non - legislative and non - judicial duties which may be appropriately delegated. Specifically, the borough manager shall have the following duties and responsibilities: to recommend to borough council the hiring, suspension or discharge of employees under the supervision of the borough manager; to recommend to borough council a standard pay schedule for all employees under the borough manager's supervision; to perform Ms. Bettylou Balderston July 2, 1987 Page 2 evaluations of the employees under the borough manager's supervision; to prepare and submit to borough council a budget with an explanatory budget message; to prepare for submission to borough council a fiscal financial report; to advise borough council as to the financial condition and possible needs of the borough; to recommend to council the adoption of any measures that are necessary for the health, safety and welfare of the community; to execute and enforce the laws of the Commonwealth and the political subdivisions thereof to prepare an agenda and attend all meetings of the borough council; to oversee that all provisions of franchises, lease, permits and privileges granted by the borough are observed; to supervise the performance and execution of all contracts; to make certain that all monies owed to the borough are promptly paid and to institute proceedings for security and collection of borough claims; to act as the purchasing officer for the borough; to receive and investigate complaints relative to borough services and the administration of borough matters; to oversee the writing of all reports and correspondence and to cooperate with the borough council so that the best interest of the borough and general public is maintained and lastly to perform any other duties that may be required of the borough council. - In your capacity of borough manager you also had certain responsibilities with the planning commission. You, as borough manager, and the commission secretary worked together in coordinating submissions and reviews. Further, you participated in the authorship of various planning ordinances and poli ci es. When di rected by the borough council , you even di rected the planning commission. You also interviewed developers and real estate personnel prior to plan submission and formal review. You negotiated projects on behalf of New Hope Borough with the planning commission. The submission and distribution of plans by and to the borough manager is required by the Land Development and Subdivision Ordinance. You did not, however, attend any scheduled meetings of the planning commission and did not participate regardi ng any internal recommendations. Following your resignation and termination of your position as borough manager with New Hope Borough, you became project coordinator with Condor Properties as previously noted. One of the several projects on which you act as project coordinator is located in New Hope Borough, Bucks County Pennsylvania. The particular site in question was developed prior to your empl oyment as borough manager but was abandoned by the origi nal developer and taken over by the financing institution, City Bank of New York. After City Bank had negotiated with the Borough of New Hope for almost five years, they in turn sold the site to Condor Properties. You note that you were an active participant in the negotiations with the borough of New Hope, but the negotiations were unproductive and City Bank elected to market the property. Ms. Bettylou Balderston July 2, 1987 Page 3 You note that you did not meet your present employer until after you left your position as borough manager of New Hope Borough. Lastly, you state that Condor Industries was not involved with the Borough of New Hope in developing this particular site while you were employed as borough manager. Based upon the above facts, you inquire as to what restrictions the Ethics Act imposes upon you for one year after the termination of your public empl oyme nt. 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 such as the State Adverse Interest Act or the Governor's Code of Conduct. 4 As a borough manager for New Hope Borough, 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 mrri nimus on the interests of another person. 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. Initially, to answer your request the " governmental body" with which you were associated while working with New Hope Borough must be identified. Then, the scope of the prohibitions associated with the concept and 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 Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). Ms. Betty lou Balderston July 2, 1987 Page 4 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 both the borough council and the planning commission. Thus, the "governmental body" with which you have been "associated" upon the termi nation of your employment would be both the borough council and planning commission. Therefore, within the first year after you would leave New Hope Borough, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a-vis borough council and the planning conmi ssion. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the borough council and the planning commission. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from New Hope Borough. 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 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; Zwi kl , 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 borough council and the planning commission), including, but not limited to, negotiations or renegotiations on contracts with the borough council and the planning commission; 2. Attempts to influence the borough council and the planning commission; Ms. Bettyl ou Balderston July 2, 1987 Page 5 3. Participating in any matters before the borough council and the planning commission over which you had supervision, direct involvement, or responsibility while employed by New Hope Borough; 4. Lobbying, that is representing the interests of any person or employer before borough council and the planning commission in relation to 1 egi sl ation, 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 borough council and the planning commi ssion, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave New Hope Borough, you should not engage in the type of activity outlined above. (The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by borough council and the planning commission is not prohibited as .."representation." See Kotalik, 84 -007) . You may, assist in the preparation of any documents presented to borough council and the planning commission so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before borough council and the planning commission. Once again, however, your activity in this respect should not be revealed to the borough council and the planning commission. Of course, any ban under the Ethics Act would not prohibit or preclude you frail making general informational inquiries of borough council and the planning 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 borough council and the planning commission 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. Additionally, 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 goverrmental body, was influenced by such offer. See 65 P.S. §403(b). Ms. Bettyl ou Balderston July 2, 1987 Page 6 Conclusion: As a borough manager, you are to be considered a "public employee" as defined in the Ethics Act. Upon termi nation of your service with New Hope Borough, 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 requi repents of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction i s borough council and the planning commi ssion. Further, should you termi nate your employment or servi ce, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year fol1 owi ng your termi nation of servi ce. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding 4initiated by the Commission, and evidence of good faith conduct in any other civi 1 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. Fi nal ly, i f you disagree wi challenge same, you may request personal appearance before the C Opinion from the Commission will writing, to the Commission withi to 51 Pa. Code 2.12. th this Advice or if you have any reason to that the full Commission review this Advice. A ommi ssion wi 11 be scheduled and a formal be issued. Any such appeal must be made, in n 15 days of service of this Advice pursuant �nce rely , Vincent . Dopko General Counsel