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HomeMy WebLinkAbout93-624 FrankhouserSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 24, 1993 Robert M. Frankhouser, Jr., Esquire Hartman Underhill & Brubaker 221 East Chestnut Street Lancaster, PA 17602 -2782 Carlos Graupera, Executive Director SACA Development Corporation 545 Pershing Avenue Lancaster, PA 17602 93 -624 Re: Former Public Employee; Section 3(g); Housing Inspector; City of Lancaster. Dear Messrs. Frankhouser and Graupera: This responds to your letters of November 9, 1993 and November 15, 1993, 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 Housing Inspector following termination of service with the City of Lancaster. Facts: Both Mr. Graupera and Mr. Frankhouser wrote to the State Ethics Commission requesting advice regarding the same issue, therefore, this advisory responds to both inquiries. The Spanish American Civic Association (SACA) and its wholly owned subsidiary, SACA Development Corporation (SDC), are non - profit organizations located in Lancaster, Pennsylvania. Mr. Graupera is the Executive Director of SACA and SDC and Mr. Frankhouser represents the organizations. SDC acquires vacant houses in Lancaster, rehabilitates them and makes them available for low and moderate income families to rent or buy. Money received from the sale of houses is used to acquire and rehabilitate additional houses. On August 16, 1993, SDC was awarded a housing and development grant through the City of Lancaster. The City agreed to act as a sponsor for the Department of Community Affairs Housing and Development Grant. Mr. Graupera, as Executive Director of SDC, is responsible for the contract supervision, implementation and Robert M. Frankhouser, Jr., Esquire Carlos Graupera, Executive Director November 24, 1993 Page 2 administration for SDC. Mr. Frankhouser submitted a copy of the contract with his correspondence and that document is incorporated herein by reference. Under the contract, SDC is required to hire a full -time manager to coordinate and manage the project. This position of Rehabilitation Specialist is a technical supervisory position overseeing the housing rehabilitation process, not a position of policy making or senior management. The Rehabilitation Specialist would be preparing construction specifications for individual rehabilitation projects, accepting and analyzing bids received from private contractors for rehabilitation work and supervising construction to insure compliance with applicable building codes and contract specifications. He would not be responsible for any direct contact with the City or any of its officials whose responsibilities include enforcement of housing and building codes. Nor would he be involved in the negotiation of public or private funding, the acquisition or sale of property or the awarding of contracts. The job description for Rehabilitation Specialist and the organizational chart for SDC were submitted by Mr. Graupera and are incorporated herein by reference. SDC wishes to hire Mr. George F. Aragon (Aragon) as Rehabilitation Specialist. Aragon is currently employed by the City of Lancaster as a Housing Inspector and is a "public employee" under the Ethics Law. As a Housing Inspector for the City of Lancaster, Aragon is responsible for making periodic inspections and providing technical assistance for SACA's rehabilitation projects. He is not in a position to make decisions regarding SACA's funding. Contracts are executed by the City Mayor and ratified by City Council. Based upon the above, you request an advisory from the State Ethics Commission regarding the applicability of the Ethics Law to the employment of Aragon. Discussion: As a Housing Inspector for the City of Lancaster, Mr. George F. Aragon is 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. 5402; 51 Pa. Code §11.1. 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 minimis on the interests of another person. Robert M. Frankhouser, Jr., Esquire Carlos Graupera, Executive Director November 24, 1993 Page 3 Consequently, upon termination of public service, Aragon 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 Aragon is associated while working with the City of Lancaster 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 Aragon is associated upon termination of public service would be the City of Lancaster 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 Robert M. Frankhouser, Jr., Esotuire'F Carlos Graupera, Executive Director November 24, 1993 Page 4 particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with the City of Lancaster, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis- a-vis the City. 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..." Lectislative 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 Aragon is associated is the City of Lancaster. 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 restriction against such "representation," the Ethics Law defines "Represent" as follows: Robert M. Frankhouser, Jr., Esquire Carlos Graupera, Executive Director November 24, 1993 Page 5 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. 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 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, Aragon should not engage in the type of activity outlined above. Aragon may assist in the preparation of any documents presented to the City of Lancaster. However, he may not be identified on documents submitted to the City. Aragon may also counsel any person regarding that person's appearance before the City. Once again, however, the activity in this respect should not Robert M. Frankhouser, Jr., Esquire Carlos Graupera, Executive Director November 24, 1993 Page 6 be revealed to the City. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the City 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 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. In Confidential Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. 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 been 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 Housing Inspector for the City of Lancaster, Mr. George F. Aragon is to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the City of Lancaster, Aragon would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the City of Lancaster, in its entirety. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Robert M. Frankhouser, Jr., Esquire Carlos Graupera, Executive Director November 24, 1993 Page 7 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 513.2(h). ncerely, Vincent J. Dopko Chief Counsel