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HomeMy WebLinkAbout88-558 ClarkeMr. F. Kenyon Clarke 216 So. Bristol Road Chalfont, PA 18914 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 26, 1988 88 - 558 Re: Former Public Official, Section 3(e), Municipal Chairman and Member Authority This responds to your letter of March 8, 1988, 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 Chalfont -New Britain Township Joint Sewage Authority. Facts: In your advice request you state that you are a former chairman and member of the Chalfont -New Britain Township Joint Sewage Authority, hereinafter Authority, with offices located at 1645 Upstate Road, Doylestown, Pennsylvania, 18901. After noting that you have been chairman for the last ten years and a member for the last 15 years, you state that without prior notice the borough council did not reappoint you to the Authority in January, 1988. You then note that the council appointed another individual who is qualified and presently serving on the board of the Authority. You then state that the Authority is in the midst of an eleven million dollar plant expansion and that you devoted many hours to this project relative to supervision, negotiating change orders and generally reviewing the construction as well as being the primary member who reviewed on a day -to -day basis the activities of the general contractor. You feel that you are intimately aware of all problems associated with the administration of this plant expansion contract. After you were not reappointed, you state that several members of the Authority approached you and asked you to serve as a consultant to the Authority so as to continue your work in supervising the contract whereby your expertise relative to this contract could be utilized. Before agreeing to become a consultant for the Authority, you request advice from the Ethics Commission as to the propriety of your proposed conduct. Mr. F. Kenyon Clarke April 26, 1988 Page 2 Discussion: As member and chairman of th Authcrty, you were a public official as that term is defined under the Ethics Act. 65 P.S. 5402; 51 Pa. Code 51.1. As such, your conduct is subject to the provisions of the Ethics Act. Upon termination of you service, you would be come a "former public official" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Y-- 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 tha "governmental body" with which you were associated while working with the Authority mu;t 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, Opinion 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 service 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. It is noted, however, that the conflicts of interest la- is primarily concerned with financial conflicts and violations of the public t qst. The intent of the law generally Mr. F. Kenyon Clarke April 26, 1988 Page 3 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, Opinion 83 -014; Zwikl, Opinion 85 -004. In respect to the one year representation the Ethics Commission has promulgated regulations to define " epresentation" 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 employee. 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 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, Opinion 80 -048 and Seltzer, Opinion 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 Mr. F. Kenyon Clarke April 26, 1988 Page 4 Kilareski, Opinion 80 -054. Therefore, within the first year after you leave the Authority, you shouted not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employees or con ultant on a "pricing proposal," even if submitted to or reviewed by the Authority, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Authority so long as you are not. i 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, Opinion 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. 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 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 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As member and chairman of the Authority, you were a "public official" subject to the provisions of the Ethics Act. Following the termination of service, you became a "former public Mr. F. Kenyon Clarke April 26, 1988 Page 5 official" subject to the restrictions of Section 3(e) of th 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 appear individually for the purpose of engaging in consulting services before your former governmental body. Lastly, the propriety of your conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), this Advice is a compinte 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 former Opinion from th' Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of thf,s Advice pursuant to 51 Pa. Code S2.12. Sincerely, tn-o)CN C Vincent J. Dopko, General Counsel