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HomeMy WebLinkAbout88-673 KolbMs. Nancy D. Kolb 88 -673 Executive Director 210 N. 21st Street Philadelphia, PA 19103 Re: Former Public Employee; Section 3(e), Pennsylvania Historical and Museum Commission, Assistant Executive Director, Bureau Director Dear Ms. Kolb: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 29, 1988 This responds to your letter of December 5, 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 from June, 1979 until November 23, 1988, you were an employee of the Pennsylvania Historical and Museum Commission, hereinafter PHMC, wherein you held various positions: Site Administrator, Pennsbury Manor (1979- 1982); Assistant Executive Director (1982 - March, 1988); and Director, Bureau of Historic Sites and Museums (March - November, 1988). After noting that you have accepted a position as Executive Director of the Please Touch Museum for Children in Philadelphia, you state that PHMC maintained a museum assistance program and that Please Touch Museum has successfully competed for funding in the special project category of that particular grant program. In addition, you state that the founding Director of the museum, Portia Sperr, served on the Commission's Museum Advisory Committee during the formative years of the Museum Assistance Program and was on the special projects grant panel for the review of the 1988, 1989 grants. You also advise that Please Touch Museum will be receiving a legislative initiative grant from DCA in addition to being awarded funding through the competitive process by PHMC and the Arts Council. You note that while you served as Assistant Executive Director of PHMC, you were involved in drafting guidelines for the Museum Assistance Program in 1983 and 1984 but that the final decisions about the Ms. Nancy Kolb December 29, 1988 Page 2 program and how it would be administered and who would receive the grants was made by the Executive Director of that Commission. After noting that you did serve on a few occasions as a member of the staff review committee for technical assistance grants, you state that the staff panel did make recommendations but the Executive Director and the Commission made the final decisions. Additionally, you state that once the program was established, you were periodically requested by the Director of the program, Brenda Barrett, for recommendations for panelists for the grant review process although the final decision on that matter was made by the Executive Director. In the current fiscal year you state that your involvement with the museum assistance grant program has been limited and that you have had no involvement whatever with the recommendations regarding funding or panelists. In addition you state that prior to the time of your employment inquiries which started in September, you had no involvement with the Please Touch Museum and have not been in a position to influence any decisions or grant applications for that museum. After expressing your concern that you want your present past relationship with the museum assistance program to be made clear, you state that Please Touch Museum needs to continue to seek support from the Commonwealth through the Arts Council, PHMC and other entities for possible funding. You then advise that you will have no involvement with the museums grant applications for a one year period but the Board of Directors has indicated its intention to continue to apply competitively for funds through the various available grant programs. Additionally you state that you will for at least one year period decline to serve on any grant review panels for either the Council of Arts or the PHMC. You conclude by requesting advice as to whether your actions will be in compliance with the provisions of the State Ethics Act. Discussion: As a Assistant Executive Director and Bureau Director for PHMC, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. This conclusion is based upon your job description, 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(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Ms. Nancy Kolb December 29, 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. S403. Initially, to answer your request the "governmental body" with which you were associated while working 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 PHMC. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be PHMC. 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 PHMC. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the PHMC. 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. In respect to the one year representation the Ethics Commission has promulgated regulations to define "representation" as follows: Ms. Nancy Kolb December 29, 1988 Page 4 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 S1.1. 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 PHMC), including, but not limited to, negotiations or renegotiations on contracts with the PHMC; 2. Attempts to influence PHMC;- 3. Participating in any matters before PHMC 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 PHMC 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 PHMC, 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 PHMC, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to PHMC so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before PHMC. Once again, however, your activity in this respect should not be revealed to the PHMC. Of course, any ban under the Ethics Act would not prohibit or Ms. Nancy Kolb December 29, 1988 Page 5 preclude you from making general informational inquiries of PHMC 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 PHMC your representation of, or work for your new employer. 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. Additionally, it is noted that Section 403(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. §403(b). 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 Assistant Executive Director and Bureau Director, 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 "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 PHMC. 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. Ms. Nancy Kolb December 29, 1988 Page 6 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, r) Vincent . Dopko, General Counsel