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HomeMy WebLinkAbout94-612 AngeliRaymond S. Angeli, Secretary Commonwealth of Pennsylvania Department of Community Affairs Room 317 Forum Building Harrisburg, PA 17120 Dear Mr. Angeli: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 29, 1994 94 -612 Re: Conflict, Public Official /Employee, Department of Community Affairs, Former Deputy Secretary for Programs, Secretary of Department of Community Affairs, Executive Level Employee, Involvement with Business Which Offers Position of Employment. This responds to your letter of September 15, 1994 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 Secretary for the Department of Community Affairs, who previously served as the Department's Deputy Secretary for Programs, from accepting an offer of employment from a junior college, where he attended a briefing before the Governor's Cabinet Committee regarding a proposed anthracite technology center to be established at the junior college, which project was thereupon recommended to the Governor for funding through a grant to a city which will be supporting the establishment of the center. Facts: As Secretary for the Department of Community Affairs you request an advisory from the State Ethics Commission regarding your intention to seek a position as President of Lackawanna Junior College in Scranton, Pennsylvania. Your inquiry arises from your involvement in a project tied closely with the College. In 1988, under the Capitol Redevelopment Assistance Act, the Legislature approved and the Governor sustained the inclusion of the development and the establishment of the Lackawanna Junior College Anthracite Technology Center in Scranton, Pennsylvania. This $2.2 million action made the City an eligible applicant if the Governor made a decision to fund them. In the fall of 1993, the Angeli, Raymond S., 94 -612 September 29, 1994 Page 2 Cabinet Committee composed of Karen Miller, who was then the Secretary of Community Affairs, Mike Hershock, Budget Secretary, and Andy Greenberg Secretary of Commerce met to review those projects the Governor decided he wished to further review for funding. The Anthracite Technology Center at Lackawanna Junior College was one selected. The Secretary of Community Affairs was not available on the day this project was briefed, and you as Deputy Secretary for Programs sat in for her. The recommendations on funding were made to the Governor by the Cabinet Committee after consultation with others in attendance. As of the date of your letter seeking this Advice, the final decision had not been made by the Governor, but Lackawanna Junior College's proposal was being recommended. The grant request is actually to the City of Scranton which is supporting the establishment of the Center at Lackawanna Junior College. You point out that in 1988 you were the Regional Director for the Department of Community Affairs in Scranton and you had no connection with -- nor knowledge of -- the original request for funding. You state that you have reviewed the Ethics Law and do not believe that it applies to your situation. However, you do not wish to jeopardize the future of the grant request, nor do you wish to be eliminated from consideration for the position because of your limited involvement. You state that you were not involved in any discussion to induce the opening or relocation of a new facility within the Commonwealth nor did you vote on any application or submission by the City of Scranton or Lackawanna Junior College. Finally, you note that this opportunity with the Junior College has come up rather quickly since the President of the College resigned August 1, 1994. You were contacted by the Chairman of the Board and were asked if you would be interested in applying for the position. The Board met August 17, 1994 and voted to offer you the Presidency. You would like to accept the position effective January 1, 1995. You note that you will excuse yourself immediately from any decisions affecting the College. Based upon all of the above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the Angeli, Raymond S., 94 -612 September 29, 1994 Page 3 burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Secretary of the Department of Community Affairs, you are a public official /employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. In addition, you are an executive -level state employee as that term is defined under the Ethics Law, infra and subject to the requirements of Section 3(i), infra. 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 or 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. Angeli, Raymond S., 94 -612 September 29, 1994 Page 4 "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self- employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. 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 any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Section 3(i) of the Ethics Law provides: Section 3. Restricted Activities (i) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. Under Section 3(a) of the Ethics Law quoted above, a public Angeli, Raymond S., 94 -612 September 29, 1994 Page 5 employee may not use the authority of office 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 position or emoluments of public office or confidential information received by being in your public position to advance an opportunity of private employment with Lackawanna Junior College. It is expressly assumed for purposes of this advice that you have not taken any such action. In addition, the authority of office may not be used as a means of attempting to eliminate any potential competitors who would be competing with you for the position. Pepper, Opinion 87- 008. Therefore, subject to the qualifications as noted above, Section 3(a) of the Ethics Law would not preclude you from accepting the position with Lackawanna Junior College. As to Section 3(i) of the Ethics Law, that provision of law is applicable to you as an executive -level state employee. Section 3(i) sets forth a specific prohibition that a former executive level state employee for a period of two years after termination of state employment may not be employed or receive any compensation nor may act in a representative capacity for a business or corporation that the former executive level state employee "actively participated" in recruiting or inducing to open or expand in Pennsylvania. It should be further noted that Section 3(i) contains a proviso: it only applies where the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. Section 3(i) of the Ethics Law would not preclude your prospective employment with Lackawanna Junior College unless the above qualifying conditions of Section 3(i) exist. In this case, these conditions do not exist. First, factually, the grant request is for the City of Scranton which municipal body is supporting the establishment of the Anthracite Technology Center at the College. Therefore, the grant would not be to the "business or corporation" recruited or induced to expand. Second, it appears unlikely that your involvement with this project would rise to the level of "active participation." The facts which you have submitted indicate that your involvement with this project was limited to filling in for the Secretary of Community Affairs at a briefing on this project. You have stated, "The recommendations on funding were made to the Governor by the Cabinet Committee after consultation with others in attendance." This sentence is capable of varying interpretations, but there is no indication that you were so consulted or that you Angela, Raymond S., 94 -612 September 29, 1994 Page 6 participated in making any such recommendations. You have also affirmatively represented the following: I was not involved in any discussion to induce the opening or relocation of a new facility within the Commonwealth, nor did I vote on any application or submission by the City of Scranton or Lackawanna Junior College. Based upon your affirmative representations as to your limited participation in this project and the fact that the grant would not be to the College itself, but rather would be to the City of Scranton, the Ethics Law would not prohibit your proposed acceptance of the position as President of Lackawanna Junior College. You are advised that if public service is terminated and the position with Lackawanna Junior College is accepted, you will become a former public official /employee subject to the restrictions of Section 3(g) of the Ethics Law: 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. 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." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. In applying the above definition to the instant matter, we must conclude that the governmental body with which you will have been associated upon termination of public service will be the Department of Community Affairs, hereinafter "DCA ". The above is based upon the language of the Ethics Law, the legislative intent Angeli, Raymond S., 94 -612 September 29, 1994 Page 7 (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 state senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of public service, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DCA. 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 C.S.A. 1901, it is clear that the governmental body with which you have been associated is DCA. 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 under Section 3(g) 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 Angeli, Raymond S., 94 -612 September 29, 1994 Page 8 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 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 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 Angeli, Raymond S., 94 -612 September 29, 1994 Page 9 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 DCA so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DCA. Once again, however, the activity in this respect should not be revealed to DCA. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries 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. 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 Governor's Code of Conduct. Conclusion: As Secretary of the Department of Community Affairs, you are a public official /employee and an executive -level state 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 the position as President of Lackawanna Junior College. Section 3(i) would not restrict your proposed employment as President of Lackawanna Junior College, based upon the facts which you have submitted and your affirmative representations noted above as to your limited involvement as to the proposed Anthracite Technology Center to be established at the College through a grant to the City of Scranton. Should you terminate public service, you must comply with the restrictions of Section 3(g) as a former public official /employee. Lastly, 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. Angeli, Raymond S., 94 -612 September 29, 1994 Page 10 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 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 513.2(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. Vincent . Dopko Chief Counsel