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HomeMy WebLinkAbout87-650 RohalMichael J. Rohal, P.E. Progressive Designs, Inc. 4717 Freemansburg Avenue Easton, PA 18042 Dear Mr. Rohal: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (7171 783-1610 December 22, 1987 ADVICE OF COUNSEL 87 -650 Re: Former Public Employee; Section 3(e), Municipal Authority Executive Director /Engineer This responds to your letter of December 2, 1987, in which you requested Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Bethlehem Township Municipal Authority and Bethlehem Township Board of Commissioners. Facts: You state that you resigned your position as Executive Director /Engineer of the Bethlehem Township Municipal Authority, hereinafter Authority on October 30, 1987, after which time you worked one day per week on a part -time basis until a replacement for your position is appointed. You further state that you have a private practice as a professional engineer and that the Authority is desirious of engaging your services as a consultant but the solicitor has expressed concern that there may be a prohibition under the Ethics Act concerning your contemplated activity. You also advise that you have served in various volunteer capacities before the Bethlehem Township Board of Commissioners, hereinafter Board / and request advice as to whether you may submit plans on behalf of clients in the township if you continue to serve in a voluntary capacity as township engineer for various municipal boards such as planning and recreation. Discussion: Since you have posed two questions for consideration under the Ethics Act, each inquiry will be discussed separately. Consideration will first be made to the question of the restrictions which the Ethics Act would impose upon you following your termination of service with the Authority. After that analysis is completed, the matter of your involvement with the Board will be considered. Michael J. Rchal, P.E. December 22, 1987 Page 2 As an Executive Director/Engineer for 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 function, 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 Kreger, No. 595; 65 P.S. §402; 51 Pa. Code §1.1. Consequently, upon termination of this employment, you would become "former public employee" subject to Section 3(e) of the Ethics Act. Sectii;n 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 Authority 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). 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 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 (with the exception of the Board which will be discussed infra) other than with respect to the Authority. Likewise, there is no general limitation Michael J. Rohal, P.E. December 22, 1987 Page 3 on the type of employment in which you may engage, following your departure from the Authority. 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 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. Once again, it should be noted that this portion of the advice only concerns your conduct relative to the Authority but not the Board which will be discussed infra. Michael J. Rohal , P.E. December 22, 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 Authority, constitutes an attempt to influence your former governmental body. See Kil areski , 80 -054. Therefore, within the first year after you leave the Authority, 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 the Authority, is not prohibited as "representation." See Kotalik, 84 -007. 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 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. In the instant situation, the activity you contemplate consists of providing services as a consultant to your former employer, the Authority. Such contemplated conduct is the precise activity which Section 3(e) of the Act was designed to prohibit or restrict, namely the representation of your professional engineering firm or yourself individually before your former governmental body, the Authority. In Kreger, No. 595, the Ethics Commission found that a former member of a municipal authority violated Section 3(e) of the Ethics Act, as well as violated Sections 3(a) and 3(c), when he negotiated a consulting contract and appeared before his former governmental body within one year after he resigned as Authority member. See also Wolpert, No. 169, wherein this Commission found that a school director violated Section 3(e) of the Ethics Act when he contracted with his school district within one year after he terminated his service. Therefore, under Section 3(e) of the Ethics Act you may not appear before your former governmental body, the Authority, by engaging in the activity of or serving as a consultant. Michael J. Rohal , P.E. December 22, 1987 Page 5 Turning to the matter of your service before the Board, you state that you have served in a voluntary capacity and ask whether you could submit plans on behalf of clients in the township in light of your voluntary service as township engineer on municipal Boards such as planning and recreation. In this regard, it is assumed that you have some status or position with the Board, albeit on a voluntary basis. The fact that you serve in a voluntary, that is, non - compensated basis, does not effect the applicability of the Ethics Act to your conduct. In Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981), the Pennsylvania Supreme Court held that the defintional phrase "public official" unconstitutional insofar as it operated to exempt appointed /non- compensated officials from Ethics Act coverage. The Court's decision had the effect of removing the appointed /non- compensated exclusion from the Ethics Act, thereby including those individuals under the coverage of the Ethics Act. The quotations of Sections 3(a) and 3(b) of the Ethics Act above and the commentary thereafter are incorporated herein by reference. Consideration now must be given as to whether you may simultaneously serve in a non - compensated fashion before the Board and also serve private clients by submitting plans on their behalf before the Board. The Ethics Commission has determined that the main prohibition under the Ethics Act is that you may not serve the interest of two persons, groups or entities whose interests may he adverse. See Alfano, 80 -007. In the second situation outlined above, you would be serving entities with interests which are adverse to each other because you would be simultaneoulsy serving in a non - compensated fashion before the Board and also representing the interest of private clients who would be submitting plans before that governmental body. See also Kreger, supra. Therefore, under Section 3(a) of the Ethics Act, a conflict of interest would arise on your part by your simultaneous service as a non - compensated public official serving with the Board and your representation of private clients who would be submitting plans before that Board. Conclusion: As an Executive Director /Engineer for the Authority and a non - compensated official for the Board, you are to be considered a "public official /employee" subject to the provisions of the Ethics Act. Under Section 3(e) of the Ethics Act, you may not for a period of one year after you terminate your service with the Authority, represent your firm or appear individually before that governmental body for the purpose of engaging in consulting services as a professional engineer. Further, under Section 3(a) of the Ethics Act, you may not simultaneously serve, even though it is in a non - compensated position, as a member of the Board and simultaneously represent private clients through submitting plans before that governmental body. Lastly, the propriety of your conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance,' or regulation or code of conduct other than the Ethics Act has not been considered. Michael J. Rohal , P.E. December 22, 1987 Page 6 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 Dopko General Counsel