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HomeMy WebLinkAbout93-504 DanielsMs. Katherine Daniels 606 State Street Lancaster, PA 17603 Dear Ms. Daniels: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 13, 1993 93 -504 Re: Conflict, Public Official /Employee, Senior Planner, Lancaster County Planning Commission, Participation in Selection of Consultant, Position of Employment with Successful Applicant, Former Public Employee, Section 3(g). This responds to your letter of December 9, 1992, 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 senior planner with a county planning commission with regard to employment with a firm which was selected as the consultant for two regional comprehensive plans funded in large part by the county, where this individual participated in the selection of the consultant; prepared a contract between the county and the funded municipalities for one of the plans; and provided county guidance at monthly meetings on both plans. Facts: Noting a prior telephone conversation with Commission staff, you state that you are writing for guidance concerning a change in employment from the public to the private sector. You are currently employed as a Senior Planner for the . Lancaster County Planning Commission and have just resigned your position effective December 31, 1992 to take a position with a private local planning firm. You have worked closely with that firm in your assigned duties and you are anxious that public confidence in the County and yourself be maintained during the transition and after. In your current position, you were assigned to be a liaison to the development of two regional comprehensive plans funded in large part by the County. The firm you will be joining was chosen as the consultant for both plans. You were involved in the short - listing of the consultant for one of the plans, but did not participate in the final selection of the consultant for either of the plans. You also prepared a contract between the County and the funded municipalities for one of the plans, and provided County guidance Ms. Katherine Daniels January 13, 1993 Page 2 at monthly meetings on both plans. You state that three weeks prior to your inquiry with this Commission, you were offered a position with the said firm which you accepted. For the remainder of your employment with the County and in your new position, you would like to avoid any improprieties or even the appearance of impropriety in your new duties and specifically in your "relationship" with municipalities and the Planning Commission. You state that you do not foresee any conflicts. However, you are interested in knowing specifically how the State Ethics Law would apply to you. Discussion: As a Senior Planner for the Lancaster 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 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 Ms. Katherine Daniels January 13, 1993 Page 3 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 anything 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 Law would prohibit the offer, solicitation, or acceptance of a position of employment based upon the understanding that the vote, official action, or judgment 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 proffered 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 the private local planning firm. See, Wall, Advice 90 -567; Stewart, Advice 92 -500. 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, or as a means of attempting to eliminate any potential competitors who would be competing with you for such an employment position. 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 participate as a public employee in matters pertaining to a prospective employer so as to favor that firm. This could even occur at the "short- list" stage in selecting a consultant. The facts which you have submitted do not reveal whether you engaged in such conduct. It is not clear at what point the consulting firm became your prospective employer. 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 Ms. Katherine Daniels January 13, 1993 Page 4 be true. 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 private employment 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 the said local planning firm. For purposes of providing a complete response to your inquiry, you are advised that upon termination of your employment with the Lancaster County Planning Commission, you will become a former public employee subject to the restrictions of Section 3(g) of the 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 have been associated while working with the Lancaster County Planning Commission 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 Ms. Katherine Daniels January 13, 1993 Page 5 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 been associated upon termination of public service would be the Lancaster County Planning Commission 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 Lancaster County Planning Commission, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Lancaster County 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..." 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. 51901, it is clear that the governmental body with which you have been associated is the Lancaster County Planning Commission 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 Ms. Katherine Daniels January 13, 1993 Page 6 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 a 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. 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 by or contain the name of the former public official /employee; 4. Participating in any matters before the former Ms. Katherine Daniels January 13, 1993 Page 7 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 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, you should not engage in the type of activity outlined above. You may assist in the preparation of any documents presented to the Lancaster County Planning Commission. However, you may not be identified on documents submitted to the Lancaster County Planning Commission. You may also counsel any person regarding that person's appearance before the Lancaster County Planning Commission. Once again, however, the activity in this respect should not be revealed to the Lancaster County Planning Commission. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Lancaster County 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. Thus, during the one -year period of applicability of Section 3(g), you specifically could not have a "relationship" with the Lancaster County Planning Commission where you would be representing your new employer and /or its clients. 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. Specifically not addressed herein is the applicability of the County Code. Conclusion: As a Senior Planner for the Lancaster County Planning Commission, you are a public employee 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 the private local planning firm which was selected as Ms. Katherine Daniels January 13, 1993 Page 8 the consultant for two regional comprehensive plans funded in large part by the County. 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 the said planning firm and /or to eliminate competition for such a position. Upon termination of your service with the Lancaster County Planning Commission, 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 Lancaster County Planning Commission 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. 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 52.12. cerely, Vincent x! Dopko Chief Counsel