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HomeMy WebLinkAbout94-579 AleciEugene L. Aleci, AIA Architetto -Aleci 355 West Orange Street Lancaster, PA 17603 Dear Mr. Aleci: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 21, 1994 94 -579 Re: Former Public Official; Section 3(g); City; Consulting Services. This responds to your letter of June 8, 1994, 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 former city council member following termination of service with the city. Facts: You inquire about the possibility of contracting for services with the City of Lancaster as a Professional Consultant. The City is seeking professional consulting services for the preparation of a Historic Resources Survey for which you are well qualified. The contract would be with the City of Lancaster and administered by the Department of Housing and Community Development, Bureau of Planning. Funding for the project will come from the Pennsylvania Historical and Museum Commission (PHMC), and in part from the City's Community Development Block Grant (CDBG) funding with an approximate total contract expense of $18,000. According to the Request for Proposal (RFP) of the City, the "Contract will be subject to the rules and regulations of the US Department of Housing and Urban Development (USHUD) and the PHMC, including those involving non - discrimination, conflict of interest, and acknowledgement of state and /or federal assistance in all publications.: You have served as an elected City Member from January 1, 1990 to January 1, 1994. Near the end of term of your office, in November 23, 1993 at a City Council Meeting, there was a vote by Council to approve a resolution authorizing the City's application to the PHMC for a $20,000 grant under PHMC's Certified Local Government (CLG) program, "to be used for various Historical Aleci, Eugene L., 94 -579 June 21, 1994 Page 2 Architectural Review Board (HARB) purposes." During that vote you abstained and acknowledged the possibility that you would work as an architect and could have some relationship with cases before the City's HARB. The resolution did pass with a 6 -0 vote with your abstention as recorded in Council's Meeting Minutes. At the time you did not know what involvement you would have. From speaking with the Planning Bureau, you understand that an element of the grant application relates to work of a subject consultant services contract. You are not sure how definitely this specific use activity was defined at the time of the vote, and you voted to approve the City's annual budgets from 1991 to 1994 and the CDBG budgets for 1990 -91 through 1993 -94, and, to the best of your recollection, you did not abstain from any of those votes. In response to the City's RFP, you have submitted a proposal to provide consulting services wherein you noted that you would seek an opinion on a potential conflict of interest, and would withdraw the proposal, or withdraw from the contract, if any valid contract would be determined to exist. You would appreciate any clarification on the question, and in general, regarding all potential consulting contracts with the City to the extent possible without specified details of those contracts. You conclude by requesting a prompt response since the City intends to select the consultant for the particular contract by June 24, 1994 with services beginning by July 15, 1994 with contract execution anticipated between those times. Discussion: As a Councilman for City of Lancaster, you were 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. S402; 51 Pa. Code 511.1. Consequently, upon termination of public service, you 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 you were associated while working with the City of Lancaster must be identified. Then, the scope of the prohibitions Aleci, Eugene L., 94 -579 June 21, 1994 Page 3 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 you were associated upon termination of public service would be City of Lancaster including all Bureaus and Commissions. 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 City of Lancaster, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis City of Lancaster. 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: Aleci, Eugene L., 94 -579 June 21, 1994 Page 4 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 were associated is 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: 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; Aleci, Eugene L., 94 -579 June 21, 1994 Page 5 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 Shav, 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 City of Lancaster. However, you may not be identified on documents submitted to City of Lancaster. You may also counsel any person regarding that person's appearance before the City of Lancaster. Once again, however, the activity in this respect should not be revealed to the City of Lancaster. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the City of Lancaster 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 Aleci, Eugene L., 94 -579 June 21, 1994 Page 6 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. Therefore based upon Confidential Opinion, 93 -005 supra, wherein the Commission determined that a former public official /employee could not provide consulting services to his former governmental body via contract within a period of one year after termination of service, you are advised that the Ethics Law would specifically prohibit your submitting an RFP to the City of Lancaster to provide consulting services. 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 City Council Member of the City of Lancaster, you are to be considered a "public official" as defined in the Ethics Law. Upon termination of service with the City of Lancaster, you would become a "former public official" subject to Section 3(g) of the Ethics Law. The former governmental body is the City of Lancaster including all Bureaus and Commissions. The restrictions as to representation outlined above must be followed. The Ethics Law would prohibit you for a period of one year after termination of service from submitting a contract or from providing consulting services to your former governmental body. 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 Aleci, Eugene L., 94 -579 June 21, 1994 Page 7 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. rcere , Vincent . llopko Chief Counsel