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HomeMy WebLinkAbout88-648 AndressMr. Spencer J. Andress 650 Market Street Oxford, PA 19363 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 23, 1988 88 -648 Re: Former Public Official; Section 3(e), Borough Council Dear Mr. Andress: This responds to your undated letter received by the State Ethics Commission on October 4, 1988, in which you requested advice. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Borough Council of Oxford. Facts: You state that you were appointed to an unexpired term on the Oxford Borough Council in June, 1977 and that you won the November, 1977 general election. Thereafter you note that you ran and were elected to full terms in 1979, 1983 and 1987. You then advise that on August 30, 1988 at a special meeting of council you submitted your resignation which was effective on that date. You further note that during your tenure on borough council you served as a member and chairman of various committees as well as the president of borough council on two separate occasions. You then advise that you are employed as a president of a Pennsylvania corporation engaged in general management consulting services which are provided to local county and state governments. You state that the services involved: obtaining grants and funding, economic development, attracting business and industry to municipalities, land use planning, municipal management, contract negotiations, etc. You then request advice as to what limitations exist and for what period of time vis -a -vis the employment of your firm by the Borough of Oxford in rendering professional consulting services in the above - mentioned areas. If the employment is not prohibited, you ask for guidance as to the procedures to be followed in obtaining Mr. Spencer J. Andress November 23, 1988 Page 2 employment and lastly, what restictions or prohibitions would apply to other governmental bodies such as counties and the state government. Discussion: As a councilmember and president for Oxford Borough, you are to be considered a "public official" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. Consequently, upon termination of your service, you 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. S403. Initially, to answer your request the "governmental body" with which you were associated while working Oxford Borough 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 Oxford Borough and various committees on which you served, hereinafter referred to as the Borough and Committees. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Borough and Committees. Therefore, within the first year after you would leave Oxford Borough, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Borough and Committees. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the borough and committees. Likewise, there is no general limitation Mr. Spencer J. Andress November 23, 1988 Page 3 on the type of employment in which you may engage, following your departure from Oxford Borough. 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 §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 Borough and Committees), including, but not limited to, negotiations or renegotiations on contracts with the borough and committees; 2. Attempts to influence the Borough and Committees; 3. Participating in any matters before the Borough and Committees over which you had supervision, direct involvement, or responsibility while employed by Oxford Borough; 4. Lobbying, that is representing the interests of any person or employer before the Borough and Committees in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. Mr. Spencer J. Andress November 23, 1988 Page 4 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 Borough and Committees, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave Oxford Borough, 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 Borough and Committees, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Borough and Committees so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Borough and Committees. Once again, however, your activity in this respect should not be revealed to the borough and committees. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Borough and Committees 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 borough and committees your representation of, or work for your new employer. Finally, administering renegotiating by the Ethics 81 -538. the Commission has concluded that if you are an existing contract as opposed to negotiating or a contract, your activities would not be prohibited Act. See Dalton, Opinion 80 -056 and Beaser, Advice 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 official or public employee or candidate for public office would be influenced thereby. 65 P.S. §403(b). Mr. Spencer J. Andress November 23, 1988 Page 5 Additionally, it is noted that Section 3(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. S403(b). As to your specific inquiries, from the above, the one - year limitation of the Ethics Act does not relate to your firru but relates to your conduct as a former public official. Further, the restrictions in Section 3(e) outlined above only relates to your representation vis -a -vis your former governmental body, that is, the Borough and Committees but not other governmental bodies such as the counties and state government. 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 Oxford Borough Councilmember, you are to be considered a "public official" as defined in the Ethics Act. Upon termination of your service with Oxford Borough, you would become a "former public official" 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 Borough and Committees. 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)(11), 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. Mr. Spencer J. Andress November 23, 1988 Page 6 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 S2.12. VJD /rda Sincerely, LivoNk\ Vincent J. Dopko, General Counsel