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HomeMy WebLinkAbout92-516Dear Mr. Ehrman: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783-1610 ADVICE OF COUNSEL January 23, 1992 Mr. William A. Ehrman York County Solid Waste and Refuse Authority 2653 Blackbridge Road York, PA 17402 92 -516 Re: Former Public Official; Section 3(g); Municipal Authority Member; Consultant to Authority. This responds to your letter of November 26, 1991, 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 municipal authority member following termination of service with the municipal authority, specifically with regard to serving as a paid consultant to that authority. Facts: As the Executive Director of the York County Solid Waste and Refuse Authority ( "Authority ") in York, Pennsylvania, you seek the advice of the State Ethics Commission on behalf of a present Authority Member, Dr. Lloyd E. Lerew. You note that the Authority was created under the Municipality Authorities Act of 1945, and that Dr. Lerew's position on the Authority is an unpaid position. You specifically inquire as to whether Dr. Lerew would be permitted to serve as a paid consultant to the Authority upon leaving office. You acknowledge that the consulting position would be filled within one year of completion of Dr. Lerew's term of office. Discussion: As a Member of the York County Solid Waste and Refuse Authority ( "Authority "), Dr. Lloyd E. Lerew is to be considered a "public official" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of the Commission. 65 P.S. 402; 51 Pa. Code 1.1.- Mr. William A. Ehrman January 23, 1992 Page 2 Consequently, upon termination of public service, Dr. Lerew would become a "former public official" 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 Dr. Lerew has been associated while working with the Authority 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. In applying the above definition to the instant matter, we must conclude that the governmental body with which Dr. Lerew has been associated upon termination of public service would be the York County Solid Waste and Refuse Authority 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 Mr. William A. Ehrman January 23, 1992 Page 3 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 York County Solid Waste and Refuse Authority, Section 3(g of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the York County Solid Waste and Refuse Authority. 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..." 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 Dr. Lerew has been associated is the York County Solid Waste and Refuse Authority in its entirety. 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, Mr. William A. Ehrman January 23, 1992 Page 4 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." ' 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 matts.rs 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. Mr. William A. Ehrman January 23, 1992 Page 5 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 Shay, 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, Dr. Lerew should not engage in the type of activity outlined above. Dr. Lerew may assist in the preparation of any documents presented to the York County Solid Waste and Refuse Authority so long as Dr. Lerew is not identified as the preparer. Dr. Lerew may also counsel any person regarding that person's appearance before the Authority. Once again, however, the activity in this respect should not be revealed to the Authority. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquirics of the Authority 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. In applying the above restrictions of Section 3(g) of the Ethics Law to your specific inquiry, Section 3(g) of the Ethics Law would prohibit Dr. Lerew from providing consulting services directly to the York County Solid Waste and Refuse Authority for one year following termination of his service as a public official with that governmental body. As a paid private consultant, Dr. Lerew might serve the interest of the Authority, but he would also be upholding his own interest in a private capacity. Such representation by Dr. Lerew of his own private interest would be prohibited by Sectio.. 3(g) during the one year period of its applicability. Confidential Opinion 89 -019. It is noted that Section 3(a) of the Ethics Law would prohibit a use of the authority of office or confidential information received by holding a public position so as to obtain a private consulting contract with the governmental body upon termination of public service, and that Section 3(f) of the Ethics Law would prohibit such contracting with an incumbent public official /public employee where there has been no open and public process, but rather, private negotiations between the governmental body and the public official /public employee. 111,, Confidential Opinion 89 -019, supra. It is therefore assumed - that such prohibited activities have not occurred. Mr. William A. Ehrman January 23, 1992 Page 6 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 anything 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 tut 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. Specifically not addressed herein is the applicability of the Municipality Authorities Act. Conclusion: As a Member of the York County Solid Waste and Refuse Authority ( "Authority "), Dr. Lloyd E. Lerew is to be considered a "public official" as defined in the Ethics Law. Upon termination of service with the York. County Solid Waste and Refuse Authority, Dr. Lerew would become a former public official" subject. to Section 3(g) of the Ethics Law. The former governmental body is the York County Solid Waste and Refuse Authority in its entirety. The restrictions as to representation and as to Sections 3(a), (b), (c), and (f) 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 such. Finally, if you disagree with reason to challenge same, you Commission review this Advice. A Commission will be scheduled and a this Advice or if you have any may request that the full personal appearance before the formal Opinion from the Mr. William A. Ehrman January 23, 1992 Page 7 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. truly yours, Vincent J. Dopko, Chief Counsel