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HomeMy WebLinkAbout90-544 BreinichMs. Anna M. Breinich Herbert, Rowland & Grubic, Inc. Consulting Engineers 4099 Derry Street Harrisburg, PA 17111 Dear Ms. Breinich: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 6, 1990 90 -544 Re: Former Public Employee; Section 3(g); Tri- County Regional Planning Commission; Planner. This responds to your letter of March 19, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Law presents any restrictions upon your employment following your termination of service with the Tri - County Regional Planning Commission. Facts: From April 1980 until December 31, 1989, you were employed as a Planner for the Tri- County Regional Planning Commission (TCRP) of Harrisburg which serves Cumberland, Dauphin and Perry Counties. TCRP, as a regional planning agency, exists through a cooperative agreement between the three counties and serves as an advisory agency but does not assume any powers or functions of county planning commissions such as subdivision review /approval, planning /administration of Pennsylvania Community Development Block Grant (CDBG) Programs. The thirty -one members of TCRP are appointed as follows: three by the County Board of Commissioners Chairmen, 12 by the County Planning Commission appointees, 3 by the Minority Association nominated members and 13 by the Planning Section representatives nominated within each of ten geographic sections. The TCRP employs staff members who also serve as staff of the county planning commissions in Dauphin and Perry' County, but not in Cumberland which planning commission employs its own staff. While employed by TCRP you were coordinator of all CDBG program activities which include the planning services consisting of program design, application preparation and environmental assessment preparation for Dauphin County and all program planning and project /grant administration for Perry County. TCRP provided technical and advisory CDBG program assistance through its staff to the county commissioner who made the ultimate determination to use the CDBG Ms. Anna M. Breinich Page 2 program funds. You were directly involved with all existing and proposed CDBG funded activities during funding years (FY) 1982 through 1989. As part of the FY 1989 CDBG program, funding was allocated to Cumberland, Dauphin and Perry Counties for the development of a regional fair housing analysis. TCRP served as "the lead agency" for the activities with the counties and their respective communities being the actual grantees. The fair housing analysis which is required by the CDBG program regulations was to be completed by a consultant since at the time of the application in June of 1989 adequate staffing was not available. You prepared the preliminary scope of work and budget which included all FY 1989 CDBG applications. The information related to this matter was a matter of public record per public participation requirements of the CDBG program. The training that you received in order to prepare the work program was obtained through the Pennsylvania Department of Community Affairs training on minority business enterprise /fair housing analysis program requirements which was offered in March of 1989, that training being offered to any grantee or CDBG consultant. You note that you were not aware that you would be leaving TCRP employment during the development of the work program. In October of 1989, you were interviewed for your present position of planning director for Herbert, Rowland & Grubic, Inc. In that month you accepted your new position and resigned from your position with TCRP. You considered the possibility of responding to the fair housing analysis request for proposal and decided to remove yourself from any further active involvement therein with the approval of the Executive Director. The RFP and final work program was completed by the Dauphin County Redevelopment Authority staff which administers the Dauphin County CDBG program. A review of the draft RFP was completed by other commission staff and advertised by the authority. Herbert, Rowland & Grubic, Inc. has submitted a proposal relative to the fair housing analysis RFP and is being considered for that contract. The award of the contract by the TCRP is contingent upon a satisfactory ruling from this Commission regarding your involvement in the activity. Since the Fair Housing Analysis would be supervised and completed by yourself, you conclude by requesting a ruling as to the applicability of the Ethics Law to yourself and Commission employees. You question whether TCRP employees are "public employees" under the Ethics Act in that they are staff of the TCRP and not the county planning commissions. In addition you note that several years ago the TCRP solicitor determined that TCRP employees were not required to file the Statements of Financial Interests which in his view were only applicable to county planning commission members. Discussion: Initially, you question whether your activities and functions fall within the purview of the definition of "public employee" as that phrase is defined in the Ethics Law and the regulations of this Commission. In order to review the question presented, we will briefly outline the duties and responsibilities associated with your position as contained in your letter. Your duties and responsibilities, as set forth in your letter which is incorporated Ms. Anna M. Breinich Page 3 herein by reference, include the following: coordinated the CDBG program activities including planning services, program design, application preparation, environmental assessment preparation for Dauphin County and all program planning in project /grant administration for Perry County; direct involvement with all existing and proposed CDBG fund activities through the years 1982 through 1989 and the performance of preliminary "Scope of Work and Budget" regarding the fair housing analysis. The Ethics Law defines that term as follows: Section 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official .action has an economic impact of greater than a de minimus nature on the interests of any person. 65 P.S. 402. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any individual: (B) who meets the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his Ms. Anna M. Breinich Page 4 responsibility in the field site supervision; or ( -c -) the supervisor of level field office. without on- any highest (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward stop recommendations from being sent the person or body with the authority make final decisions; or to to ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements and other governmental body department heads. Ms. Anna M. Breinich Page 5 (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) Solicitors, engineers, managers, and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerk of the schools. 51 Pa. Code 1.1. We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in your advice request. Our inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage Ms. Anna M. Breinich Page 6 of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from. the Ethics Law should be narrowly construed. Based upon this directive and reviewing the definition of "public employee" in the statute and the regulations and opinions of this Commission, in light of your job functions and the information available to us, we must conclude that you are a "public employee" under the Ethics Law. It is clear that in your capacity as a Planner, you have the ability to recommend official action with respect to subparagraphs 2, 3 and 5 within the definition of "public employee as set forth in the Ethics Law, 65 P.S. 402. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 1.1, subparagraph (B)(II). 51 Pa. Code 1.1. Under these circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined . in the Ethics Law. of public service, you would subject to Section 3(g) of the Law. Section 3(g) of the Ethics Consequently, upon termination become a former public employee" Public Official and Employee Ethics Act provides that: Section 3. Restricted activities. No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. Initially, to answer your request the governmental body with which you were associated while working with TCRP must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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. Ms. Anna M. Breinich Page 7 In applying the above definition to the instant matter, we must conclude that the governmental body with which you have been associated upon termination of public service would be TCRP and the Cumberland and Dauphin Planning Commissions, collective referred to as the three commissions. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90 -009, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with TCRP, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the three commissions. In Nixon, Opinion 89 -006, the Commission determined that the Department of General Services (DGS) automated purchasing systems project manager's governmental body may extend beyond DGS in light of his involvement with other agencies of the Commonwealth in performing his duties and responsibilities. Similarly, in Hitt, Opinion 90 -005, the Commission determined that a manager in the office of Director of Assessments of Allegheny County was not only restricted from that body but also as-to the Board of Property Assessments, Appeals and Review in light of the interconnection between those two different and separate agencies. Finally, in Pollock, 89 -031, the Commission determined that a former Pittsburgh City Councilmen was not restricted in terms of the one year representation restriction from city council but as to all government units in the City of Pittsburgh as well as all authorities interconnected with the city. Therefore, based upon the prior precedent of the Commission, your former governmental body would be the three commissions. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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 Ms. Anna M. Breinich Page 8 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 governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. Definitions. "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. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term representation " as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former.. governmental body or bodies, including, but not . limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are . signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. Ms. Anna M. Breinich Page 9 The Commission has also held that 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 former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, the three commissions should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by you, is not prohibited as representation. You may, assist in the preparation of any documents presented to the three commissions so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the three commissions. Once again, however, the activity in this respect should not be revealed to the three commissions. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the three commissions to secure information which is available to the general public. 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. The Commission has concluded that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Conclusion: As a Planner, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with TCRP, you would become a "former public employee" subject to the Ethics Law. Your former governmental body are the Tri- County Regional Planning Commission and the Perry and Dauphin Planning Commissions. The restrictions as to representation as outlined above must be Ms. Anna M. Breinich Page 10 followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following 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. 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 2.12. S' cerely, Vincent . Dopko, Chief Counsel