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HomeMy WebLinkAbout19-522 BennettPHONE: 717 -783 -1610 TOLL FREE: 1 -800- 932 -0936 ADVICE OF COUNSEL May 15, 2019 To the Requester: Mr. James Bennett Senior Planner Transportation Services Dewberry Engineers Inc. Dear Mr. Bennett: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19 -522 This responds to your letter dated March 13, 2019, and your submission received March 18, 2019, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act "Ethics Act "), 65 TS. § 1101 et sew., would impose restrictions upon employmen of an individual employe /serving as the Land Planning Manager, Assistant Zoning Officer, and Code Enforcement Officer for Silver Spring Township, Pennsylvania, following termination of employment/service with Silver Spring Township. Facts: You request an advisory from the Commission regarding the post - empToyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. Until January 25, 2019, you were employed as the Land Planning Manager for Silver Spring Township (" Township"), Pennsylvania, in which capacity you served as the Township Assistant Zoning Officer and the Township Code Enforcement Officer. You have submitted a copy of a job description (the "Job Description ") for the position of Land Planning Manager for the Township, which document is incorporated herein by reference. It is noted that per the Job Description, the position of Land Planning Manager is within the Township Community Development Department ( "Community Development Department ") and reports to the Community Development Director. The Job Description lists service as Assistant Zoning Officer and Code Enforcement Officer for the Township among the "essential functions of the Land Planning Manager. You are currently employed with Dewberry Engineers Inc. (the "Firm ") as a Senior Planner, Transportation Services. The Firm provides various engineering and planning services to governmental entities in Pennsylvania at the local, county, and state level. Bennett, 19 -522 May 5, 2019 Page 2 You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment/service with the Township. In particular, you pose the following questions: (1) Whether you would be required to wait for a particular period of time before you would be permitted to market the Firm's services to the Township, (2) Whether there would be any restrictions upon the type of marketing activities /efforts that you could engage in with regard to marketing the Firm's services to the Township; (3) Whether you would be prohibited from marketing the Firm's services to governmental entities other than the Township; and (4) Whether you would be prohibited from completing work for the Township. Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(11) of to i EFs Act, 65 Pa.C.S. y§§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. In the former capacity as the Township's Land Planning Manager, in which capacity you served as the Assistant Zoning Officer and Code Enforcement Officer for the Township, you would be considered a public official/public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Consequently, upon termination of your employment/service with the Township, you became a former public official/public employee subject to Section 1103(g) of the Ethics Act. While Section 11030 does not prohibit a former public official/public employee from accepting a position of employment, it does restrict the former public official/public employee with regard to "representing" a "person" before "the governmental body with which Yee has been associated ": § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a ersonn, with promised or actual compensation, on any matter before the governmental bod with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," "governmental body," and " overnmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: § 1102. Definitions Bennett, 19 -522 May 5, 2019 Page 3 "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa.C.S. § 1102. The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public officiaFpu t i employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: 1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public officiallpublic employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovil Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official/ public employee on invoices submitted by his new employer to the former governmental body, even if the invoices pertain to a contract that existed prior to termination of service with such governmental body. _Shama , Opinion 91 -012. However, if such a pre- existing contract does not involve the unit where a former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. AbramsANebster, Opinion 95 -011. A former public official/public employee may assist in the preparation of any documents presented to his former governmental body. However, the former public official/public employee may not be identified on documents submitted to the former governmental body. The former public official/public employee may also counsel any Bennett, 19 -522 May 15,, 2019 Page 4 person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Section 1'103 (g) only restricts the former public official/public employee with regard to representation before his former governmental body. The former public officiallpublic employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official/public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public officiallpublic I had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 0- 067,8T arp, Opinion 90- 009 -R. The governmental body with which you are deemed to have been associated upon termination of your employment/service with the Township is the Community Development Department in its entirety. Therefore, for the first year following termination of your employmentfservice with the Township, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person " — including but not limited to the Firm — before the Community Development Department. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first, second and third questions, you are advised as follows. During the first year followin termination of your employment/service with the Township, Section 1103(8) of le Ethics Act would prohibit you from marketing the Firm's services to the Community Development Department as such would necessarily involve prohibited representation before the Community Development Department. Section 1103(8) of the Ethics Act would not prohibit you from: (1) marketing the Firm's services to ownship officials and/or entities (such as departments, commissions, boards, committees, and the like) that are not part of the Community Development Department; or (2) marketing the Firm's services to governmental entities other than the Township, subject to the condition that in so doing, you would not engage in prohibited representation before the Community Development Department as set forth above. In response to your fourth question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from performing work for the Township unless you would be able to do so without engaging in prohibited representation before the Community Development Department as delineated above. 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; In the former capacity as the Land Planning Manager for Silver prang Township ( "Township "), Pennsylvania, in which capacity you served as the Township's Assistant Zoning Officer and Code Enforcement Officer, you would be considered a public official/plublic employee subject to the Public Official and Employee Ethics Act ( "Ethics Act " }, 65 Pa.C.S. § 1101 et sew., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11A_-6t seq. Upon termination of your employment/service with the Township, you became a former public official/public employee subject to Section 1103(g) of the Ethics Act. The former governmental body Bennett, 19 -522 May 15,, 2019 Page 5 is the Township Community Development Department ( "Community Development Department ") in its entirety. For the first year following termination of p your employment/service with the Township, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person " — including but not limited to your new employer, Dewberry Engineers Inc. — before the Community Development Department. The restrictions as to representation outlined above must be followed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writingg and must be actuallLt received at the Commission within thirty (30) days of the date o ►s Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal Sincerely,, obin M. Hittie f/! Chief Counsel