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HomeMy WebLinkAbout88-596 GyriscoMr. Geoffrey M. Gyrisco 423 Summit Street Lemoyne, PA 17043 Dear Mr. Gyrisco: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 1, 1988 88 -596 Re: Former Public Employee; Section 3(e), Historic Preservation Specialist, Pennsylvania Historical and Museum Commission This responds to your letter of May 18, 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 Pennsylvania Historical and Museum Commission. Facts: You state that you are currently employed as a Historic Preservation Specialist in the Bureau for Historic Preservation, hereinafter Bureau, of the Pennsylvania Historical and Museum Commission, hereinafter PHMC. You then state that you will begin employment with Kidde Consultants, Inc., of Baltimore as an archaeologist /historian in their Harrisburg branch office. You then advise that in your new position you would establish an archaeological and historical consulting division to conduct surveys and data recovery projects as mandated by state and federal historic preservation laws. In your current position, you note that you have four main areas of responsibility: the outline and drafting of the comprehensive state historic preservation; assisting local governments on the creation and establishment of local historic districts; development of program guidelines for Certified Local Governments program and the review of state and federal projects and undertakings requiring state and federal licenses, permits, loans, or loan guarantees as to their effect on historic and archaeological resources. Additionally, you note that from June, 1985 through September, 1987, you routinely reviewed many state and federal projects Mr, Geoffrey M. Gyrisco July 1, 1988 . Page 2 involving state and federal licenses, permits, loans and loan guarantees. After stating that you have no authority to sign any contract, agreement, or any agency letter of comment, you advise that you only sign letters responding to general public inquiries and that your draft - comments for the Bureau were always reviewed and signed by the Chief of the Division of Planning and Protection or the Bureau Director. In this regard, you note that comments made both under the State Historic Preservation Act and National Historic Preservation Act are advisory to agencies which retain the full authority to make final decisions. In your work for Kidde Consultants Inc., you state that you would prer're reports which federal and state agencies could use to identify historic /archaeological resources whereby those agencies cLiild deterfllne the effects of their action upon said resources. Lastl7, after stating that you officially work for the Planning and Protection Division of the Bureau, you state that r'nce October 1, 1988, you have been detailed to the Preservation ServicJs Division of the Bureau to work primarily on state -wide comprehensive historic preservation planning and secondarily on local historic preservation programs; since October you state that you have only rarely provided technical assistance to the Division of Planning and Protection on project review ma'aters. You conclude by requesting advice as to what restrictions would be imposed upon your employment by the consulting firm following the termination of your state employment. DiscuJsion: As a Historic Preservation Specialist for Pennsylvania Historic and Museum Commission, you are to be cons?,dered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations o.' this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclu' ion is based upon your job description, incorporated herJin by reference, 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 this employment, you would become a "former public employee" subject to Section 3(3) of tl Ethics Act. Section 3(e) of the Ethics Act provides that: Mr. Geoffrey M. Gyrisco July 1, 1988 Page 3 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 PHMC 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, Opinion 79- 010. See also Kury v. 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 PHMC, 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, there is no general limitation on the type of employment in which you may engage, following your departure from PHMC. 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, Opinion 83 -014; Zwikl, Opinion 85 -004. 17. Geoffrey M. Gyr:isco J - ily 1, 1983 Page 4 In respect to the one year representation 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 employee. 51 Pa. Code X1.1. The Commission, in its opinions, has also interpreted the tsrm "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or holies with which you have been associated, (that is the :,,uraau), including, but not limited to, negotiations or ren:::'1otiatior_s 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 PHMC; 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 pzovide 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 PHMC, 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. Mr. Geoffrey M. Gyrisco July 1, 1988 Page 5 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 from making general informational inquiries of the Bureau 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 Bureau your representation of, or work for your new employer. Finally, the Commission has concluded that if you arci administering an existing contract as opposed to negotiating or renegotiating 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 Gr employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would influenced thereby. :r 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. Mr, Geoffrey M. Gyrisco July 1, 1988 Page 6 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, prdinance, regulation or other code of conduct athe.r than the Ethics Act has not been considered in that they do icr',: involve an interpretation of the Ethics Act. _ ,ont.lusion: As a Historic Preservation Specialist, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with PHMC, you would become a "ioormer public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should con2orm 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 Further, should 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. 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 actâ–º complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have a 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 §2.12. Sincerely, Vincent '1. Dopko, General Counsel