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HomeMy WebLinkAbout88-574 KennedySTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 2, 1988 Mr. Michael S. Kennedy. 121 Hill Lane Mechanicsburg, PA 17055 Re: Employ:-a; Department of Community Affairs, Director of the Bureau of Housing and Development Dear Mr. Kennedy: 88 - 574 This responds to your letter of April 12, 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 Department of Community Affairs. Facts: In your advice request of April 12, 198i1 you indicate that you are currently the Director of the Bureau of Housing and Development, hereinafter Bureau, with the Department of Community Affairs, hereinafter DCA, and that effective May 2, 1988 you will be resigning that position to take other employment. Your job description specification, which is incorporated here in by reference, indicates that your duties and responsibilities as Bureau Director involve directing, supervising and administering the Bureau. The Bureau oversees three divisions: Community Development Division, Small Communities Program Division and Manufactured Housing Division. The Bureau as hereinafter referenced will specifically include the above three divisions. As to the Community Development Division, you are responsible for directing the activities therein which provide technical and financial assistance to local governments under the Redevelopment and Housing Assistance Act for Redevelopment /Housing and Economic Development Programs, the Federal "Rental Rehabilitation Program" and the Appalachian Regional Commission Housing and Revolving Loan Fund Program. As to the Small Communities Program Division, you are required to direct the activities therein which provides technical and financial assistance to local governments from funds granted to Mr. Michael . i(enneay June 2, 1988 Page 2 the Commonwealth via the Federal Community Development Block Grant Program. As to the Manufactured Housing Division, you direct the activities therein which include administration of regulations for compliance with State Industrialized Housing Construction Standards by manufacturing firms, acting as the "State Administrative Agency" and administering the program to assure manufactures compliance with Federal Mobile Home Construction Standards and administration of the "Building Energy Conservation Act 222." In addition you are responsible for directing disaster response and temporary housing activities for DCA. Additionally, you. are responsible for coordinating Bureau activities with Regional Directors, Regional Analysts and other Bureaus; for interacting with federal, state and local agencies to insure a continuous and up to date flow of communicetionsg representing the Bureau and its interests with the Executive Office; implementing policy that is developed and provided ix the Executive Office, and performing other miscellaneous duties as is required for the position. You conclude by requesting advice as to what limitations the Ethics Act would place upon you as to any involvement with the Commonwealth following the termination of your employment. Discussion: As a Director for Bureau of Housing and Development, you are to be considered a "public employee" within the definition of that term as set forth in 4th Ethics Act an the regulations of this Commission. 65 P.S. §402; 5 Pa. Code S1.1. This conclusion is based upon your job descrLjtion, 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 deminimus 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 :he Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No for: 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. Mr. Michael S. Kennedy June 2, 1988 Page 3 Initially, to answer your request it is necessary to identify the "governmental body" with which you were associated while working with DCA. 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 Kuril 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 Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau. Therefore, within the first year after you would leave DCA, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau. Likewise, thee is no general limitation on type of employment in which you may engage, following your departure • f -om DCA. It is noted, however, that the conflicts of interest ley 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, Opinion 83 -014; Zwikl, Opinion 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, Mr. Michael S. Keanedy •Tune 2, 1988 Page 4 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 Bureau), including, but not limited, to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by DCA; 4. Lobbying, that is representing the interests of any person or employer before the Bureau 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 Bureau, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave DCA, 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 Bureau, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may assist in the preparation of any documents presented to the Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. • Of course, any ban under the Ethics Act would not prohibit or preclude you f making general informational inquiries of the Bureau to secure infoiwation which is available to the general public. See Cutt, Opinion 79 -023. This of course, must not be Mr. Michael S. Kennedy June 2, 1988 Page 5 done in an effort to indirectly influence these entities or otherwise make known to the Bureau your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existir.g contract as opposed to negotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, Opinion 80 -056 and Beaser, Advice 81 -538. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer or accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statue, 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 a Director of the Bureau of Housing and Development, you are to be considered a "public employee" as defined in the Ethics ACt. Upon termination of your service with Mr. Michae:. 3. KenneC. June 2, 1988 Page 6 DCA, 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 Bureau. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 former 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 52.12. Sincerely, Vincent J. Dopko, General Counsel