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HomeMy WebLinkAbout92-500Mr. Alan Stewart 104 Parliament Drive Coraopolis, PA 15108 Dear Mr. Stewart: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 3, 1992 92 -500 Re: Conflict, Public Official /Employee, Deputy Director of Administration, Allegheny County Department of Aviation, Request for Proposals, Negotiations, Position of Employment with Successful Applicant, Former Public Employee, Section 3 (g)• This responds to your letter of November 12, 1991 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 the Deputy Director of Administration for the Allegheny County Department of Aviation from accepting an offer of employment from an entity which was awarded a contract with Allegheny County, where he was part of various teams which developed the request for proposals (RFP) and negotiated with the business entity on behalf of the County. Facts: You are the Deputy Director of Administration for the Allegheny County Department of Aviation ( "Department of Aviation "), in which position you report directly to the Director of Aviation. You seek the advice of the State Ethics Commission with regard to your prospective employment in the private sector as Vice President of Finance and Administration for BAA Air Terminals, Inc. (BAA). With your letter of inquiry, you have submitted various documentary exhibits consisting of the job description for your present position with the Department of Aviation; a synopsis of the relevant dates and activities leading up to the County's award of a contract to BAA, BAA's offer of employment to you, and your resignation from the Department of Aviation; and a listing of the duties which you would be performing as Vice President of Finance and Administration for Mr. Alan Stewart January 3, 1992 Page 2 BAA, all of which documents are incorporated herein by reference. It is noted that the letter of inquiry and the materials which you have submitted refer to various BAA entities which appear to be subsidiaries. For purposes of this Advice, however, it appearing from the facts as set forth below that your prospective employment would be with one of the very entities with which you dealt in an official capacity on behalf of Allegheny County, this Advice shall simply refer to the entity as "BAA." Among your major duties as Deputy Director of Administration, according to your job description, were: coordinating and managing the planning, design, and construction of airport facilities; directing and managing the negotiation,, documentation and administration of leases, concession agreements, and other Department of Aviation contracts; directing the acquisition and management of airport properties and facilities; and directing and managing federal and state grant programs for airport development. On July 12, 1990, the County Commissioners authorized the Department of Aviation to develop an RFP for a Developer - Master Lessee Concept for the Midfield Terminal Concession Program. You were one of the four members of the team which developed the RFP by August 12, 1990. Almost all of the business terms were set forth in the RFP. As of November 1, 1990, the County had received responses from five qualified developers, including BAA. On November 16, 1990, the County Commissioners established a Blue Ribbon Committee to review the proposals, through oral presentations by each firm and comment on each firm. The Blue Ribbon Committee consisted of six members and did not include you. From November 28 -30, 1990, the Blue Ribbon Committee attended oral presentations with each of the proposing entities. On January 3, 1991, the Blue Ribbon Committee submitted a briefing paper to the County Commissioners based upon their review of the proposals and the oral interviews. Between January 3 and March 22, 1991, one of the entities withdrew from the competition. Additionally, there were discussions which are not formally documented, and with which you had no involvement, which seemed to narrow the proposers to two - -BAA and one other entity. You state that based upon the projected revenue return to the County, BAA was the stronger candidate. On March 22, 1991, the Board of County Commissioners selected BAA and authorized the Department of Aviation to negotiate an agreement with BAA. Negotiations were held between BAA and the County from April 3 through June 25, 1991. You state Mr. Alan Stewart January 3, 1992 Page 3 that since most of the business terms were already established in the RFP, most of the negotiations were legal in nature. The County negotiating team consisted of three individuals and included you. You note that during the review of the BAA financial proposal, some mathematical errors were discovered in BAA's original - proposal and page 41 of the proposal was supplemented with a corrected proposal. Furthermore, following its submission of its original proposal, BAA re- examined the total capital expenditures for the Midfield Project. BAA revised its original proposal estimates, increasing the originally projected BAA expenditure of 4.5 million dollars to a revised figure of 9 million dollars on capital expenditures, and increasing the estimated expenditure for the subtenants from 9.5 million dollars to a revised figure of 15.6 million dollars. You state that the result of this revision to which the County agreed, required a revision to the profit sharing formula contained in the proposal. However, you state that BAA's financial proposal remained superior to any other proposal. On June 25, 1991, the negotiations were concluded with the exception of very minor legal issues and some technical exhibits. On July 11, 1991, the Board of County Commissioners awarded the contract to BAA based upon the above negotiated terms. Commencing in early August, there were some very preliminary discussions held between you and Mr. Mike Bell regarding BAA's preliminary interest in retaining you for a key financial role, possibly as a key person in obtaining business at other major U.S. airports. Mr. Bell indicated that further discussion would be required with his superiors in the United Kingdom, and on August 24, 1991, following' his further discussions, you and Mr. Bell discussed the details of the job, salary ranges, and the like. On September 27, 1991, Roger Kitley, CEO of BAA International offered you a formal employment contract. You then discussed the matter with Mr. Scott O'Donnell, Director of Aviation, and informed him that you were interested in taking the position. Mr. O'Donnell said that he would notify the County Commissioners at the appropriate time. On October 10, 1991, you accepted BAA's September 27, 1991 employment offer but stated that the new employment would commence November 18, 1991. On November 4, 1991 you submitted a letter of resignation to Mr. O'Donnell, Director of Aviation. A review of the job description for your position with BAA reveals that among your numerous duties would be the responsibility of maintaining on -going relations with "other" Mr. Alan Stewart January 3, 1992 Page 4 U.S. airports and airport affiliated organizations to assist in developing new airport contracts at other U.S. airports. Discussion: As Deputy Director of Administration for the Allegheny County Department of Aviation (Department of Aviation), 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 of his immediate family or a business with 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. Mr. Alan Stewart January 3, 1992 Page 5 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. Thus, for example, Sections 3(b) and 3(c) of the Ethics Lew would prohibit the offer, solicitation, or acceptance of a position of employment based upon the understanding that the vote, official action, or judgement of the public official /public employee would be influenced by the proffered employment. This Advice is expressly conditioned upon the assumption that there are no such understandings in this case which would violate Sections 3(b) and /or 3(c) of the Ethics Law. Under Section 3(a) of the Ethics Law quoted above, a public employee may not use the authority of public office /employment or confidential information to obtain, a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. In applying Section 3(a) of the Ethics Law to the profferred facts, Section 3(a) would prohibit you from using the status of your public employment or your activities to advance an opportunity of private employment with BAA. See, Wall, Advice 90 -567. 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 your public' employment, or any confidential information received by being in your position of public employment, either as a means of obtaining or advancing an opportunity of private employment with BAA, or as a means of attempting to eliminate any potential competitors who would be competing with you for the position with BAA. See, Wall, supra (Citing Pepper, Opinion 87 -008). One example of a prohibited use of authority of public office /employment to obtain a private pecuniary benefit of prospective employment would be to structure the development of the RFP or to conduct the negotiations with BAA so as to favor BAA. The facts which you have submitted do not reveal such conduct by you. However, in the context of a request for an advice /opinion, there is no independent investigation of the facts by this Commission such as would be performed in the context of a complaint filed with this Commission. To the contrary, the advice /opinion process requires that the Commission issue the advice /opinion assuming the submitted facts to be true. Mr. Alan Stewart January 3, 1992 Page 6 It is because of this reliance upon the inquirer for the facts that advices must frequently have stated conditions set forth within them. Conditions upon which this Advice is based include, therefore, the conditions that you did not use your public employment status or activities, the authority of your public employment or any confidential information received by holding your position of public employment to obtain or advance an opportunity for employment with BAA and /or to eliminate competition for such a position. Subject to all of the qualifications noted above, Section 3(a) of the Ethics Law would not preclude you from accepting the position with BAA. For purposes of providing a complete response• to your inquiry, you are advised that if you do terminate your employment with Allegheny County and accept the position with BAA, you will become a former public employee subject to the restrictions of Section 3(g) of the Ethics Law. 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. To fully answer your request the governmental body with which you were associated while working with the Allegheny County Department of Aviation 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 Mr. Alan Stewart January 3, 1992 Page 7 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 Allegheny County Department of Aviation in its entirety. 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. Therefore, within the first year after termination of service with the Allegheny County Department of Aviation, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis_ the Allegheny County Department of Aviation. 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. Mr. Alan Stewart January 3, 1992 Page 8 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 Allegheny County Department of Aviation. 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, subject to the restrictions of Sections 3(a) through 3(c) noted above, 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 restriction against such "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. Mr. Alan Stewart January 3, 1992 Page 9 The Commission, in f000vick, 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. In Shall, Opinion 91 -012, the Commission held that Section 3(g) would prohibit 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 though the invoices pertained to a contract which existed prior to termination of public service. 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 Department of Aviation so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Department of Aviation. Once again, however, the activity in this respect should not be revealed to the Department of Aviation. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Department of Aviation 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. Mr. Alan Stewart January 3, 1992 Page 10 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. Specifically not addressed herein is the applicability of the County Code. Conclusion: As Deputy Director of Administration for the Allegheny County Department of Aviation, you are a public employee subject to the provisions of the Ethic Law. Subject to the qualifications noted above, Section 3(a) of the Ethics Law would not restrict you from accepting a position with BAA which was offered to you after you completed your involvement on behalf of Allegheny County in the development of an RFP, negotiations, and contract with. BAA. This Advice is expressly conditioned upon the assumptions that there are no understandings in this case which would violate Sections 3(b) and /or 3(c) of the Ethics Law, and that you did not use your public employment status or activities, the authority of your public employment or any confidential information received by being in your position to obtain or advance an opportunity for employment with BAA and /or to eliminate competition for such a position. Should you terminate your service with the Allegheny County Department of Aviation, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. You must comply with the restrictions of Section 3(g) as a former public employee, as those restrictions have been outlined above. Your former governmental body would be the Allegheny County Department of Aviation in its entirety. 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 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 Mr. Alan Stewart January 3, 1992 Page 11 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. VJD /sak S ncerely, Vincent J. ' bo pko Chief Counsel