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HomeMy WebLinkAbout88-633 HarrisDear Mr. Harris: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 ADVICE OF COUNSEL October 3, 1988 Mr. Donald Harris 88 -633 Senior Planner Gateway View Plaza 1600 West Carson Street Pittsburgh, PA 15219 Re: Conflict of Interest, Public Employee, Former Public Employee, City Senior Planner, Acceptance of Position of Associate Director of Non - Profit Corporation This responds to your letter of August 29, 1988, with attachments in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon your potential employment as Associate Director of a non - profit corporation following the termination of your service as Senior Planner with the Community Planning Division of the City. Facts: With your letter of August 29, 1988, you have submitted additional documents consisting of a conflict of interest issue disclosure, conflict of interest questionnaire, a memorandum dated August 4, 1988 from the Law Department of the City of Pittsburgh regarding "Conflict of Interest -Don Harris ", June Executive Director's Report, a July 12, 1988 Board Resolution of the Homewood - Brushton Revitalization and Development Corporation (HBRDC), Pittsburgh press clippings of May 22, 1988 and July 21, 1988, a statement of the finalists for the Associate Director's position, questionnaire, job description for Associate Director, Associate Director position summary sheet, an unexecuted agreement between the City of Pittsburgh and HBRDC, statement of scope and services for HBRDC for 1988, letter of Jane Downing dated April 18, 1986, letter of Robert Lurcott dated October 10, 1987 and job listing for the position of Senior Planner with the City of Pittsburgh. Mr. Donald Harris October 3, 1988 Page 2 You state that you are currently in the position of a Senior Planner with the Community Planning Division of the City of Pittsburgh in the Department of City Planning and have been selected and offered the position of.Associate Director of HBRDC. After noting that the job announcement for the position was published in a newspaper of general circulation and that you applied for said position and were granted an interview based upon your resume, you state that you were deemed the most qualified individual and offered the position pending any necessary code of conduct and conflict of interest clearances. You have submitted various documents specified above and request a review of those documents and advice as to whether your acceptance of the position of Associate Director of HBRDC would be implicated by any of the provisions of the Ethics Act. The following information is contained in the above attachments and may be summarized as follows. In your position as Senior Planner your salary is paid in part from Community Development Block Grant (CDBG) funds from HUD and as Community Planner for the Homewood - Brushton ,Area, you were contract manager for contracts between the City of Pittsburgh, hereinafter City and HBRDC with the funds for such contracts coming out of the City's yearly CDBG allocation. Because of your position as Community Planner for the Homewood - Brushton Area wherein you managed the HBRDC's CDBG contracts with the City Planning Department wherein part of your salary was paid from CDBG funds, potential conflict of interest existed which warranted public disclosure in the July 12, 1988 Board of Directors meeting of HBRDC and in a July 21, 1988 addition of the Pittsburgh Post - Gazette. In the "conflicts prohibited" document, it is recited: that you did not participate in the decision making process as to the award or the amount of funding relative to HBRDC and that you were unaware of the Associate Director's position opening until you read the job announcement in the Pittsburgh Courier; that you intend to resign your position as Senior Planner to accept the position of Associate Director; that the position of Associate Director was advertised; that resumes were submitted and that you were deemed the most qualified individual for the position. The Law Department for the City of Pittsburgh in its August 24, 1988 memorandum issued an opinion that your acceptance of the position of Associate Director of HBRDC would not violate local law but recommended that you contact the State Ethics Commission to determine how your conduct would impact upon the State Ethics Act. You requested such advice in your letter of August 29, 1988. Mr. Donald Harris October 3, 1988 Page 3 Discussion: As a Senior Planner in the Department of City Planning of the City of Pittsburgh, you are a "public employee" as that term is defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code 51.1. As such, your ,conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 5403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Under Section 3(a) above, you could not use your public position or any confidential information as a means of advancing yourself for the new position you seek. Bover, Advice 88 -616. However, since it appears that the job position was advertised in the paper and that you were merely one of several applicants who applied for this position, after a review of all the resumes and interviews, it does not appear based upon those facts that there was any use of office or confidential information on your part to obtain the offer of the position of Associate Director. Mr. Donald Harris October 3, 1988 Page 4 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). 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 nor 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. Section 3(e) of the Ethics Act provides: 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. S403. If you resign as City Planner and thus terminate your employment, you would become a former public employee subject to the provisions of Section 3(e) of the Ethics Act quoted above. In order to determine the application of the restrictions of Section 3(e) upon your conduct for the one year period after you leave governmental service, it is necessary to identify the "governmental body" with which you are associated while working with the City of Pittsburgh. Then the scope of the prohibitions associated with the concept in term "representation" must be reviewed. Mr. Donald Harris October 3, 1988 Page 5 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 City Planning Department, hereinafter Department. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Department. Therefore, within the first year after you would leave the City of Pittsburgh, hereinafter City, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Department. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Department. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the City. 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. 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 51.1. Mr. Donald Harris October 3, 1988 Page 6 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 Department), including, but not limited to, negotiations or renegotiations on contracts with the Department; 2. Attempts to influence the Department; 3. Participating in any matters before the Department over which you had supervision, direct involvement, or responsibility while employed by the City; 4. Lobbying, that is representing the interests of any person or employer before the Department 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 Department, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave the City, 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 Department, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Department so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Department. Once again, however, your activity in this respect should not be revealed to the Department. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Department 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 Department your representation of, or work for your new employer. Mr. Donald Harris October 3, 1988 Page 7 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, Opinion 80 -056 and Beaser, Advice 81 -538. 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 Senior Planner for the City Planning Department of Pittsburgh, you are a "public employee" subject to the provisions of the Ethics Act. Under the facts and circumstances as noted above, Section 3(a) of the Ethics Act would not preclude you from obtaining the position as Associate Director of HBRDC. Upon termination of your service with the City, 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 Department. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 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 Mr. Donald Harris October 3, 1988 Page 8 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, ''))/to Vincent J. Dopko, General Counsel