Loading...
HomeMy WebLinkAbout90-572 UnknownSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 17, 1990 90 -572 Re: Former Public Employee; Section 3(g); Joint Planning Commission; Chief Planner. This responds to your letter of June 6, 1990, in which you requested a confidential advice from the State Ethics Commi,'sion. Issue: You ask whether the Ethics Law presents any restrictions upon your employment following your termination of service with the Joint Planning Commission. Facts: You are the Chief Planner for the A Planning Commission for which you have submitted an organization chart and by -laws as well as your job description, all of which documents are incorporated herein by reference. You are considering leaving your current position and either starting your own firm or approaching B Corporation about employment opportunities or some other consulting firm in that regard. B Corporation is of specific interest because through your professional association with that firm over the past few years you have found them to be one of the best planning /engineering firms in Pennsylvania. You express concern that through the performance of your job a conflict may exist under the State Ethics Law which would preclude you from working within the two county area, applying for employment with B Corporation or some other firm or having restrictions on the range of work that you may perform. Since your current employer is unaware of your plans to seek new employment and since you have not made application /to B Corporation or any other firm, you request a confidntial advisory to protect your identity. As Transportation Section Chief, you are responsible for the day to day activities of two professional staffers and coordinate the use of support staff. Your section is involved in various activities including developing regional highway models, reviewing subdivision proposals, preparing various transit planning reports, participating in the update of the Commission's comprehensive plan for the two county area, reviewing municipal plans and ordinances, performing state clearing house reviews for transportation related projects within the two county area, collecting traffic accounts, preparing updates of the regions Page 2 highway plan and preparing the region's transportation improvement program, listing the area's highway and transit needs on a priority basis for state consideration. In addition you serve as secretary to the C Study which is a non voting position on the coordinating committee; you also serve on the D Organization authorized by the Governor to set regional transportation priorities, . the latter of which position you have held for eight years. Further, as chief planner you manage the work of all transportation related activities, prepare contracts for the joint planning commission, advise the executive director on planning matters and serve as a primary spokesman on planning issues that relate to transportation. You have been involved in various aspects of major planning efforts to widen existing highways or build new highways within the two county area. You supply a list of projects in which you had certain involvement and then set forth your responsibilities as to each particular project. /. The E Plan was contracted between 1980 and 1982 for an amount of $50,000 with the consultant F. The G Study occurred between 1985 and 1986 with H as the consultant. The I Study occurred between 1985 and 1987 with B Corporation as a consultant for which private and public sectors donated $50,000. The J with K as the consultant covered the two years spent from 1987 to 1989. The L with M as the consultant was pursuant to a fifty thousand dollar pass through contract between 1985 and 1987. In addition, there was a N from 1987 to the present time with 0 as the consultant pursuant to a $500,000 pass through arrangement. The P was with Q between 1987 and 1988 pursuant to $50,000 contract awarded by the Joint Planning Commission. The R was a contract between S and T University, three municipalities and the consultant. The Commission was not a party to this particular contract but you did have certain responsibilities to it. The U was awarded to V in 1988 which is still current. The study in question was funded by the county, two municipalities and private concerns in the amount of $530,000. The X occurred between 1989 to the present with B Corporation as consultant with the county which in turn contracted with the Joint Planning Commission to administer the project and serve as project manager. After delineating your responsibilities as to each of the /above projects which is incorporated here and by reference, you pose a series of questions under the Ethics Law. First you inquire as to what restrictions would be imposed upon you if you start your own consulting company. You pose the question not only in general terms but as to the specific projects with which you have been involved. You inquire as to the one year restriction regarding making presentations to the Joint Planning Commissions, the two counties, the municipalities, steering committees or other committees with which you've been involved professionally. Secondly you inquire as to whether you may approach B Corporation about an executive position. If you are not Page 3 permitted to solicit employment, you inquire as to what conditions must exist before you may do so. You then ask if you are employed by the firm, whether you may work on all pending projects including those within the two county area and, if not, what would be the nature of the restrictions imposed upon you. Third, if you are employed by B Corporation or another consulting firm, would you be allowed to make presentations to the Joint Planning Commission or to one or more of the project steering committees or other committees involved in various projects. Fourth, if you are not able to work for B Corporation, at the present time, you inquire as to when you could start and under what conditions. Fifth, you inquire as to whether you could seek employment with another firm and if such is permissible, Whether any restrictions would exist and if you could not seek employment, then you inquire as to when you could start and under what conditions. Finally, you inquire as to what other conditions or situations must be satisfied in order to comply with the State Ethics Law. Discussion: As a Chief Planner for A Commission, you are to be considered a "public employee" within the definition of that' term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. Section 402; 51 Pa. Code Section 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) -of the Ethics Act provides that: Section 3. Restricted activities. (g) 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 the joint planning commission must be identified. Then, the scope ' of the prohibitions associated with the concept and term of "representation" must be reviewed. Page 4 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. In applying the above definition to the instant matter, we must conclude that the governmental body with which you have associated upon termination of public service would be the A Commission, the C, the D Organization, and the selection committees, on which you served hereinafter collectively, referred to as your governmental bodies. 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 the Joint Planning Commission, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis-a-vis your governmental bodies. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the /above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: Page 5 We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you have been associated is your governmental bodies. In applying the above, the Commission determined in Popovich, 89 -005 that a public employee who worked in a district office of PennDot was restricted for a period of one year Xo all of PennDot. In Nixon, 89 -006, the Commission held that a marketing director of the Department of General Services was not only restricted as to all of DGS but beyond that body in light of his contacts with other agencies. The Commission held in Pollock, 89 -031, that a former City Councilmember was not merely restricted to council but to the entire city of Pittsburgh including all government units and authorities in Pittsburgh. 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 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 yf 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 Page 6 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 Povovich, 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. 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, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to your governmental bodies so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before your governmental bodies. Once again, however, the activity in this respect should not be revealed to your governmental bodies. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of your governmental bodies to Page 7 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. 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, be influenced thereby. In addition, Section 3(a) of the Ethics Law provides in part that a public official /employee may not use the authority of office to obtain a private pecuniary benefit for himself. Thus, you could not under Section 3(a) of the Ethics Law use the authority of your office as a means in whole or part of advancing your employment with some outside agency. The foregoing provision of law does not preclude you from applying for such positions; however, Section 3(a) would restrict you from using your position as a means to obtain the employment. Turning to the specific questions you pose, as to your first inquiry, you could start your own consulting company but you would be restricted in your representation for a one year, period as noted above, not only as to specific projects in which you work but as to all projects in general. Thus, the restriction focuses upon the representation by you of the consulting firm before your formal governmental bodies. You would therefore have to wait a period of one year before making presentations to your governmental bodies which are delineated above. As to your second inquiry, you would not be precluded from approaching B Corporation regarding possible employment s)bject to the qualification noted in Section 3(a) of the Ethics Law. If you obtain employment with B Corporation, you would be precluded in representing them before your governmental bodies as per the restrictions noted above. As to your third inquiry, you would be precluded from making presentations to the Joint Planning Commission inter alia for a. one year period since such would constitute representation under the Ethics Law which is restricted by Section 3(g) quoted above. The restriction would relate to all of your formal governmental bodies which are specified above. Your fourth inquiry has been answered above. As to your fifth inquiry, you make seek employment with another firm subject to the qualification regarding Section 3(a) noted above. The same restrictions as to representation of the new employer would apply as those outlined above. 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 Page 8 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As a Chief Planner, you are to be considered a "public employees" as defined in the Ethics Law. Upon termination of service with the Joint Planning Commission, you would become a "former public employee" subject to the Ethics Law. The former governmental body is the governmental bodies listed above. The restrictions as to representation as outlined above must be 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(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 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 52.12. such. ' ncerely, Vincent . Dopko, Chief Counsel