Loading...
HomeMy WebLinkAbout90-595 BahnerDear Mr. Bahner: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 21, 1990 Mr. Michael P. Bahner Northumberland Co. Planning Commission Human Service Bldg., Room 413 370 Market Street Sunbury, PA 17801 90 -595 Re: Conflict, Public Employee, County Planning Commission, Grants Coordinator, CDBG Program, Involvement with Company which Offers Position of Employment. This responds to your letter of August 20, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a grants coordinator of a county planning commission from accepting an offer of employment from a business he assisted in obtaining a low interest loan from the industrial development authority. Facts: You are employed by the Northumberland County Planning Commission as a grants coordinator wherein your responsibilities include the coordination of approximately eleven grant programs with primary emphasis on Community Development Block Grant (CDBG) Programs. You have recently been offered a position with a business, Food Traditions and Technologies, in an administrative area to replace an individual who is leaving the firm due to other business commitments. The salary for your position would be comparable to your current position due to the start up nature of twenty employees and the wide open market which is served, co- packing shelf stable microwave prepared foods. You have had prior involvement with the company relative to its receipt of a CDBG loan in January of 1990. The company received a low interest three hundred thousand dollar loan as part of a seven hundred thousand expansion package from the industrial revolving loan fund which was administered by a subrecipient, the Northumberland County Industrial Development Authority. You were involved with the loan at the request of the IDA director to assist the company with its business plan and further assist the Mr. Michael P. Bahner Page 2 director in putting together a loan package that would meet DCA standards. Due to your banking background in understanding of DCA economic development guidelines, you customarily act in such capacity. Once a loan package is prepared your involvement ceases until the IDA board of directors approves the loan and forwards it to the county board of commissioners for their approval. After the local approval process has been completed, you then package the loan with the associated request for payment forms and forward it to the small communities program division loan committee for their decision. Since you desire to accept the opportunity for employment, you request advice from this Commission on this matter. Discussion: As a Grants Coordinator for the Northumberland County Planning Commission, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with Mr. Michael P. Bahner Page 3 which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 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. Under Section 3(a) of the Ethics Law quoted above, a public employee may not use the authority of office or confidential information to obtain a private pecuniary benefit for himself, member of his immediate family, or business with which he or a member of his immediate family is associated. In applying the proffered facts to Section 3(a) of the Ethics Law, Section 3(a) would prohibit you from using the status of your office or your activities to advance an opportunity of private employment with Food Traditions and Technologies. It is expressly assumed for purposes of this advice that you have not taken any such action. In addition, you could not use the authority of office as a means of attempting to eliminate any potential competitors who would be competing with you for the position with Food Traditions and Technologies. Pepper, Opinion 87 -008. Therefore, subject to the qualifications as noted above, Section 3(a) of the .Ethics Law would not preclude you from accepting the position with Food Traditions and Technologies. Lastly, although you have not so requested, you are advised that if you do terminate public employment and accept the position with Food Traditions and Technologies, you would become a former public employee subject to the restrictions of Section 3(g) of the Ethics. Law: 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 Mr. Michael P. Bahner Page 4 which he has been associated for one year after he leaves that 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 Northumberland County Planning Commission. The above is based upon the language of the Ethics Law, the legislative intent (Leaislative 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 Northumberland Planning Commission, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis Northumberland Planning Commission. 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: 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..." Leaislative 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 Northumberland Planning Commission. Mr. Michael P. Bahner Page 5 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, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in PoDovich, 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; Mr. Michael P. Bahner Page 6 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. 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 Education, is not prohibited as representation. You may, assist in the preparation of any documents presented to Northumberland Planning Commission so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before Northumberland County Planning Commission. Once again, however, the activity in this respect should not be revealed to Northumberland Planning Commission. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of Northumberland Planning Commission 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 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Grants Coordinator for the Northumberland County Planning Commission, you are a public employee and subject to the provisions of the Ethics Law. Subject to the qualifications noted above, Section 3(a) of the Ethics Law would not restrict you from accepting a position with Food Traditions and Technology which was offered to you after you assisted them in a low interest loan from the industrial revolving loan fund. Should you terminate your service you must comply with the restrictions Mr. Michael P. Bahner Page 7 of Section 3(g) as a former public employee. Lastly, 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. 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 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. Vincent J1.) Dopko, Chief Counsel of4