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HomeMy WebLinkAbout90-593 MalmgrenMs. Lynn Malmgren Two Bala Plaza Suite 300 Bala Cynwyd, PA 19004 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 21, 1990 90 -593 Re: Former Public Employee; Section 3(g); City; Law Department; Consulting Services; Department of Administration and Human Resources. Dear Ms. Malmgren: This responds to your letter of August 15, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a general manager for administration and human services following termination of service with a city. Facts: You are a former City of Philadelphia employee who has joined a management and human resources consulting firm that does business with the City. Prior to the termination of your service with the City, you sought an opinion of the solicitor, a photocopy of which has been supplied relative to the circumstances of your situation. The Assistant City Solicitor did not reach a conclusion on the issue of whether you might work on a contract between your firm and another city agency with which had no previous contact. Because the solicitor advised you that his office could not render an opinion since you are no longer a city employee, you seek advice from this Commission at his suggestion. You were an employee of the City Law Department assigned permanently to the Water Department to act as a General Manager of the Administration and Human Resources. During your employment you contracted with your current employer Johnson, Fenner, Levy (JFL) to assist in designing and implementing a management development program for the Department's sixty managers. Upon joining JFL, you have not participated in any activities relative to the Water Department with which your firm still has a contract. The foregoing restraint is consistent with an opinion issued to you by the solicitor dated April 12, 1990. JFL has recently been approached by the City's Department of Ms. Lynn Malmgren Page 2 Human Services (DHS) to provide consulting services relative to management development. You had no involvement with the contract nor did you have any subsequent negotiations leading to the agreement. If a contract for services is awarded, you inquire as to whether the firm could assign you to work on the delivery which in this case would be conducting structured interviews with DHS managers. After advising that you had no business contact with DHS while employed by the City, your current employer expects you to begin work with DHS in the fall. You conclude by requesting an opinion under the Ethics Law relative to the situation. Discussion: As a General Manager for the City Law Department assigned to the Water Department, 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 City of Philadelphia 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: Ms. Lynn Malmgren Page 3 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 were associated upon termination of public service would be the City of Philadelphia. 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 -R, 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. See also Confidential Opinion, 89- 019 wherein the Commission determined that the former governmental body, for purposes of the one year representation restriction, of a former public employee in a director's office of a city was the entire city. Therefore, within the first year after termination of service with the City of Philadelphia, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the 'City of. Philadelphia, including but not limited to the Water Department, Law Department and Department of Human Services. 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: Ms. Lynn Malmgren Page 4 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 were associated is the City of Philadelphia. 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 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, Ms. Lynn Malmgren Page 5 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. 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 the City of Philadelphia so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the City of Philadelphia. Once again, however, the activity in this respect should not be revealed to the City of Philadelphia. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the City of Philadelphia 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 fact that you had virtually no business contact with DHS while employed by the City is not relevant to the considerations of your former governmental body and the scope of the restrictions as to the representation of a person. Further, in Ms. Lynn Malmgren Page 6 Confidential Opinion 89 -019, supra, the full Commission determined that the former municipal employee was precluded inter alia for a period of one year from managing a services program (representing) on behalf of a corporation (person) before the former governmental body (city) relative to a private consulting services contract which was contemplated between the former public employee and the municipality. Based upon the prior precedent of the Commission, you are advised that Section 3(g) of the Ethics Law would preclude your representation (... "act on behalf of any other person in any activity... ", 65 P.S. 402) of JFL before your former governmental body, the City of Philadelphia for a period of one year of the termination of public service. 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 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 General Manager of Administration and Human Resources in the Water Department on assignment from the Law Department, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the City of Philadelphia, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the City of Philadelphia. Section 3(g) of the Ethics Law would restrict the former public employee from representing a new employer for a period of one year before her former governmental body. The other restrictions as to representation 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. Ms. Lynn Malmgren Page 7 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 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. Sincerely, c)7)(10 Vincent 1. Dopko, Chief Counsel