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HomeMy WebLinkAbout88-617 StewartSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 Mr. Leonard L. Stewart, Esquire Mellon Square 435 Sixth Avenue Pittsburgh, PA 15219 -1886 Re: Former Public Official; Section 3(e), Municipal Authority Board Member; Computer Operations Consultant Dear Mr. Steward: ADVICE OF COUNSEL August 1, 1988 88 - 617 This responds to your letter of June 21, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any prohibition or restrictions upon the potential employment as a Computer Operations Consultant of a former Municipal Authority Board Member within one year of the termination of service with the Authority. Facts: You have telephonically advised that you represent a former board member of a municipal authority who seeks to provide consulting services with his former governmental body. You then state that the former member of the Municipal Authority Board would provide consulting services for compensation as to the Authority's computer operations including the training of Authority employees in the operation of the computer software program. You then advise that the proposed contract would be entered into one year after termination of service of the former board member, that it would be entered into personally with the board member and that it would be entered into at an open public meeting of the Board of the Authority. You then advise that since the contract would be less than $4,000, the Authority would not be required under the Municipal Authority's Act to award the contract pursuant to the public bidding requirements. You then express your belief that since the individual is no longer a public official and would not be representing a person other than himself before the Authority Board, you believe that the proposed contract would not contravene any provisions under the Ethics Leonard L. Stewart, Esquire August 1, 1988 Page 2 Act. After assuming that the proposed contract would be otherwise lawful, you request advice as to the propriety of the proposed conduct under the applicable provisions of the Ethics Act. Discussion: As a member of the Board of a Municipal Authority, the individual is a public official as that term is defined under the_Ethics Act. 65 P.S. Section 402; 51 Pa. Code §1.1. As such his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Upon termination of his service, he would become a "former public official" 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 the former board member was associated while working with the 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, Opinion 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). Based upon the facts outlined above, the former Board member's jurisdiction, responsibility, influence and control appears to have been the Municipal Authority. Thus, the "governmental body" with which he was "associated" upon the termination of his service would be the Municipal Authority, hereinafter Authority. Therefore, within the first year after he would leave the Authority, Section 3(e) of the Ethics Act would apply and restrict his "representation" of persons or new employers vis -avis the Authority. Leonard L. Stewart, Esquire August 1, 1988 Page 3 The Ethics Act would not affect his 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 he may engage, following his 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 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 "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 §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 he was 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 he 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. Leonard L. Stewart, Esquire August 1, 1988 Page 4 The Commission has also held that preparing and signing a proposal, document or bid, or listing one's 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 the former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after he would leave the Authority, the former Board member should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of his name as an employee or consultant on a "pricing proposal," even if submitted to our reviewed by the Authority, is not prohibited as "representation." See Kotalik, Opinion 84 -007. He may, assist in the preparation of any documents presented to the Authority so long as he is not identified as the preparer. He may also counsel any person regarding that person's appearance before the Authority. Once again, however, his activity in this respect should not be revealed to the Authority. Of course, any ban under the Ethics Act would not prohibit or preclude him 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 his representation. In the instant situation, the activity which the former Board Member contemplates consists of providing services as a Computer Operations Consultant to his former governmental body through a proposed contract. The contemplated activity of entering into a contract and serving as a consultant with the Authority, the former governmental body, is the precise activity which Section 3(e) of the Ethics Act was designed to prohibit or restrict, namely the representation of the former Board member individually before his former governmental body. The restriction against representation before one's governmental body includes the situation where one is advancing one's own personal interests and is not limited to the situation where one must represent someone else or some entity. Toohev, Opinion 83- 003. In Kreger, No. 595, the Ethics Commission found that a former member of a municipal authority violated Sections 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 Leonard L. Stewart, Esquire August 1, 1988 Page 5 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 the former Board member may not appear before his former body, the Authority, by entering into a contract and 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 a Board member of a municipal Authority the individual is a "public official" subject to the provisions of the Ethics Act. Following the termination of service, he would become a "former public official" subject to the restrictions of Section 3(e) of the Ethics Act. Under Section 3(e) of the Ethics Act, he may not for a period of one year after he terminates his service with the Authority appear individually for the purpose of engaging in consulting services before his former governmental body. 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. such. This letter is a public record and will be made available as 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 7. Dopko, General Counsel