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HomeMy WebLinkAbout95-596 MasseyAlbert L. Massey P.O. Box 3491 Erie, PA 16508 Dear Mr. Massey: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1 610 ADVICE OF COUNSEL August 22, 1995 95 -596 Re: Former Public Employee; Section 3(g); Community Affairs; Recreation Advisor III. This responds to your letter of July 25, 1995, 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 Recreation Adviser III following termination of service with the Department of Community Affairs (DCA). Facts: You formerly served as a Recreation Advisor III with the Bureau of Recreation and Conservation in DCA. On the 31st of May, you were advised that since there was no money in the budget for your position, you would be terminated from employment on June 30th. Since you had less than 10 years of service, you were required to purchase your teaching and service time in order to qualify for a pension. You were advised by the retirement counselor that the 19th of June was the last day for a guaranty that your signing of the required paperwork would insure that the initial payment would be made (a deduction from your biweekly paycheck). Therefore in order to insure a pension, you signed the required paperwork and sent it to the retirement counselor. The cost of purchasing your teaching /military time was over 18% of your take home pay. On the 28th of June you were advised by phone that monies had been found and you would still be employed after the 30th. You agreed to stay for two weeks to see if anything could be done about having money removed from your paycheck for the purchase of your service time. You were advised that this was not possible, but you could make the effort. In 1991, those people, who were laid off and then called back and who were in the same position as yourself, were not given a reprieve for the removal of the purchase of Massey, Albert L., 95 -596 August 22, 1995 Page 2 military time in order to qualify for a pension. You left employment on July 14, 1995. You have been told that you could not have contact with the State agency with which you were associated for a one year period. Since you are a registered landscape architect in Pennsylvania and since you are required to place your seal on drawings that you prepare; will this seal "going by" the State Agency with which you are associated create a problem? The State Agency with which you are associated was the Bureau of Recreation and Conservation, DCA. As of July 1st this Bureau became part of the new Department of Conservation and Natural Resources (DCNR). This Bureau awards grants to municipalities for the development of parks and recreation places. The municipalities who have the responsibility for the development of parks and recreation places hire consultants -- landscape architects, architects or engineers for the design and preparation of contract documents. These drawings and contract documents are reviewed by the Bureau of Recreation and Conservation to insure the drawings and contract documents comply with State laws. The Commonwealth has a grant contract with the municipalities for the development of parks. The municipalities have a contract with the consultants and contractors to provide for the construction of the parks. All grants were awarded before the middle of May. Your position, while employed by the Commonwealth, gave you the initial contact with the grants for review and ranking. Subsequently, the grants were reviewed by the Regional Director and the Bureau staff in Harrisburg, the Deputy Secretary and the Secretary of DCA and the Governor's Office. In the course of preparing drawings and contract documents, there is no need for contact with the Bureau if one knows and understands the State laws and regulations. Such submissions may be included by the municipality with the grant. You do not understand how the following two situations cannot be a conflict of interest based upon what you were told about your association with your former Bureau: "a. The former Deputy Secretary of the Department of Community Affairs is currently serving as the mall manager for Crown America (Johnston, PA) at the Viewmont Mall, Scranton /Dixon City on Route 6. It is . . . [your] . . . understanding that while he was Regional Director of the Scranton Office of the Dept. of Community Affairs or Deputy Secretary of DCA infrastructure monies were Massey, Albert L., 95 -596 August 22, 1995 Page 3 provided to the Mall, either Sanitary sewer water through the renewal monies from the Bureau of housing, DCA. b. Raymond S. Angeli served the DCA as a Regional Director in the Scranton Office, Deputy Secretary and Secretary of DCA. Upon leaving DCA in December, He (sic) became President of Lackawanna Junior College in Scranton. There was a capital project of between 1% and 2 / million given to the College during his tenure and a member of the review committee." If these two individuals can secure jobs as a result of their positions in the DCA, you do not understand why you cannot provide consulting services for municipalities in Pennsylvania. You have not been in the position to give grants to municipalities where you can receive a commission or a job. Almost all consulting jobs awarded by municipalities are competitive. Municipalities ask for "Requests for Proposals" and review and select those firms that can provided services on a reasonable basis. You have enclosed copies of your job description, letters of June 1, 30 and July 11, resume and typical seal /title block which appears on drawings which are incorporated herein by reference. Discussion: As a Recreation Advisor III for DCA, you are 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. §402; 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. Consequently, upon termination of public service, you 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. Massey, Albert L., 95 -596 August 22, 1995 Page 4 Initially, to answer your request the governmental body with which you were associated while working with DCA 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 you were associated upon termination of public service would be DCA and DCNR. 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 DCA, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DCA and DCNR. 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: Massey, Albert L., 95 -596 August 22, 1995 Page 5 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 you were associated is DCA and DCNR. 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; Massey, Albert L., 95 -596 August 22, 1995 Page 6 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, you should not engage in the type of activity outlined above. You may assist in the preparation of any documents presented to DCA and DCNR. However, you may not be identified on documents submitted to DCA and DCNR. You may also counsel any person regarding that person's appearance before DCA and DCNR. Once again, however, the activity in this respect should not be revealed to DCA and DCNR. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DCA and DCNR 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 Massey, Albert L., 95 -596 August 22, 1995 Page 7 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. Furthermore, 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. In response to the issues you have raised, you are not precluded from working for or providing consulting services to municipalities as long as those municipalities do not make submissions or contracts with DCA or DCNR which would include your name or anything else which would constitute representation. The fact that you attach a seal to a document which lists your name is within the prohibition of Section 3(g) if submitted to your former governmental body. As to the two other individuals referenced in your letter, you have not identified the first individual and hence it is unknown whether an advisory was issued to that person. As to Raymond S. Angeli, the Commission did issue Angell., Advice 94 -612 on September 29, 1994, specifically advising Angeli that the restrictions of Section 3(g) applied to him as to contacts with DCA. Section 3(g) does not focus upon the particular duties of a public official /public employee as to his governmental body but rather imposes the above restriction regardless of the nature of those duties or responsibilities. 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 Recreation Advisor III, you were to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Department of Community Affairs, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Department of Community Affairs and the Department of Conservation and Natural Resources. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only Massey, Albert L., 95 -596 August 22, 1995 Page 8 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 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 thirty (30) 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 FAS transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. ncerely, Vincent . " Dopko Chief Counsel