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HomeMy WebLinkAbout96-543 HigginbothamHerbert C. Higginbotham, P.E. Manager - Business Development Michael Baker, Jr., Inc. Box 280 4301 Dutch Ridge Road Beaver, PA 15009 -0280 April 19, 1996 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL 96 -543 Re: Former Public Official /Public Employee; Section 3(g); Former Director, Allegheny County Department of Aviation; Former Board Member, Allegheny County Sanitary Authority (ALCOSAN). Dear Mr. Higginbotham: This responds to your letters of January 17, February 12 and March 15, 1996 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 Director of the Allegheny County Department of Aviation and former Board Member of the Allegheny County Sanitary Authority following termination of service. Facts: You seek an advisory as to the restrictions of the Ethics Law which would be applicable to you following your January 19, 1996 termination of service as the Director of the Allegheny County Department of Aviation and as a Board Member of the Allegheny County Sanitary Authority. You served as the Director of the Allegheny County Department of Aviation (Department of Aviation) from December, 1993 until January 19, 1996. Prior to that time, the majority of your career since 1972 was with Allegheny County. You have provided the following facts regarding the Department of Aviation's organizational structure within Allegheny County. The Department of Aviation is a separate department of Allegheny County government and is responsible for the operations and maintenance of the Pittsburgh International Airport and the Allegheny County Airport. There is no airport authority. You have submitted a copy of the County's organizational chart, which is incorporated herein by reference. You note that the Department of Aviation is a Higginbotham, 96 -543 April 19, 1996 Page 2 County- Operations Department which reports to the County Board of Commissioners through the Chief Clerk /Director of Administration. However, you state that this designation is based on function, not interrelationships. You note that there is no person assigned to the Operations box above Aviation and other departments. This Operations box does not indicate a person overseeing this group, but designates a functional area or grouping. Thus, although the Director of the Department of Aviation has some interaction with the Director of Administration /Chief Clerk, you state that you typically reported to and worked directly with the County Commissioners. As the Department Director, you had oversight over the Department and all responsibilities associated with operating the Department. The Director of the Department of Aviation is hired by the Allegheny County Commissioners. Two of the three Commissioners' names must appear on a PAA -100 form appointing this position. You have submitted a copy of your own PAA -100 form which is incorporated herein by reference and which characterizes your appointment as Director of Aviation as an "interdepartmental transfer." The Department of Aviation differs from other County departments in some ways. The Airport System is totally financially self- sufficient and does not require any general tax revenue or funding of any kind from the County general fund. The airport is operated solely on revenues, rates and charges from the various tenants. However, funds are not maintained by the Department. Revenues are made payable to the Treasurer of Allegheny County. The Treasurer's office receives and disburses all such funds. The funds are placed into various accounts specific to the airport. Appropriate checks, balances and approvals are provided by the County Controller's office. The Department of Aviation accounts for all revenues received and expenses made and is subject to audit by the County Comptroller. (It is noted that you appear to use the terms Controller and Comptroller interchangeably. This advisory shall, for consistency, use the term "Controller.") All functions and services necessary to operate the airport on a day -to -day basis are provided by airport staff or vendors under contract to the airport through the County. Hiring for the Department can be initiated by the Department through the Employee Relations Department (Human Resources). Hiring may also be initiated by the County Commissioners. In all cases, a PAA -100 Form, as previously referenced, must be completed and signed by the Department Director, and approved by the Director of Employee Relations to assure a position is indeed available and to maintain the proper employee records. The final authorization for hiring is made when a minimum of two of the three County Commissioners sign the form. In rare instances, the Department of Aviation has used personnel from other County Departments. This is not the norm and has occurred in emergency -type situations (such as extreme weather conditions or the 1994 crash of USAir Flight 427 near the airport). In most cases, the Department of Aviation would be cross - charged if personnel from another Department were used. In contrast, the airport is not able to provide employees to other departments because this would constitute a diversion of revenue away from the airport. Diversion of revenue from the airport system is prohibited by FAA regulation and by the use and lease agreement between the County and its tenants at the airport. In addition to serving as the Director of the Department of Aviation, you also served as a Board Member of the Allegheny County Sanitary Authority (ALCOSAN). Hiaqinbotham, 96 -543 April 19, 1996 Page 3 You state that there is no connection between your former role as Aviation Director and your separate appointment as an ALCOSAN Board Member. As noted above, your service in both positions terminated effective January 19, 1996. Three days later, on January 22, 1996, you commenced employment with Michael Baker, Jr., Inc. You state that, based upon your review of the Ethics Law and discussions with solicitors in the Allegheny County Law Department, it appears to you as though you are prohibited from representing your new employer before either the Department of Aviation or the ALCOSAN Board. Your questions concern what conduct is appropriate to other County departments and to ALCOSAN Board Members in their roles outside of their Board assignments. As for the other ALCOSAN Board Members, you note that such include a State Representative; Pittsburgh City Councilman; an aide on the staff of the Mayor of the City of Pittsburgh; a private attorney with whom you have professional dealings unrelated to ALCOSAN; and the Allegheny County Solicitor. You note that at least one and perhaps two other Board Members will be named when you are replaced. You state that it would be beneficial to you and your new employer if you are able to discuss issues with ALCOSAN Board Members in their non - ALCOSAN roles. You pose the following specific inquiries: 1. Whether there would be any prohibition against you representing your new employer to other departments or to the Allegheny County Commissioners in items not related to Department of Aviation issues? 2. Whether there would be any prohibition against representing your new employer to ALCOSAN Board Members in their non - ALCOSAN roles? 3. Whether it is permissible for you to meet with any of the Allegheny County Commissioners to discuss issues not related to the Department of Aviation or ALCOSAN unless it is a question dealing with a past act or operation with which you were involved? 4. Whether there would be any prohibition against your attendance at a regularly scheduled public meeting of the Allegheny County Board of Commissioners? Discussion: In your former capacities as Director for the Allegheny County Department of Aviation and as a Member of the ALCOSAN Board, you would be considered a public official /public employee subject to the Public Official and Employee Ethics Law and the Regulations of the Commission. 65 P.S. §402; 51 Pa. Code §11.1. Consequently, upon termination of public service, you became a "former " public official /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 Higginbotham, 96 -543 April 19, 1996 Page 4 with which he has been associated for one year after he leaves that body. Initially, to answer your request the governmental bodies with which you were associated while working in your capacities with the Department of Aviation and ALCOSAN 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. 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/ public employee had influence or control but extended to the entire governmental body with which the public official /public 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. The Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. §1901. 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. Based upon the above, the governmental bodies with which you were associated upon termination of public service would include Allegheny County in its entirety and ALCOSAN. Hiaainbotham, 96 -543 April 19, 1996 Page 5 With regard to the first of your former governmental bodies, Allegheny County, based upon the facts which are now before the Commission, such cannot be limited to the Department of Aviation. The County Commissioners hire the Director, hire and /or approve the hiring of the Department staff, and have direct involvement with the Department Director on Department issues. The County Treasurer handles the Department's funds and the County Controller has audit control. There is no airport authority and the Department of Aviation is housed directly within County government. In Stewart, Advice No. 92 -500, a Deputy Director of Administration for the Allegheny County Department of Aviation was advised that upon terminating his employment his former governmental body would be the Department of Aviation. That Advice, as in every case, was issued based upon the facts that were before the Commission at the time. The Commission did not at that time have the facts which are now before it as to the organization and structure of the Allegheny County Department of Aviation, which facts necessitate that your former governmental bodies include Allegheny County in its entirety. Therefore, within the first year after termination of service with the Department of Aviation and ALCOSAN, Section 3(g) of the Ethics Law would apply and would restrict representation of persons or new employers before your former governmental bodies, specifically Allegheny County in its entirety and ALCOSAN. 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: Higginbotham, 96 -543 April 19, 1996 Page 6 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. Section 3(g) would also prohibit in general 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 pertain to a contract which existed prior to termination of public service. Shay, Opinion 91 -012. However, in the event of work performed on a contract already awarded and not involving the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95 -01 1. Therefore, within the first year after termination of service, you should not engage in any of the prohibited activities outlined above. You may assist in the preparation of any documents presented to either of your former governmental bodies. However, you may not be identified on documents submitted to them. You may also counsel any person regarding that person's appearance before either of your former governmental bodies. Once again, however, the activity in this respect should not be revealed to such former governmental bodies. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of either of your former governmental bodies 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 applying the definition of "Person" quoted above, the Commission has held that the term includes a former public employee representing himself in providing consulting services to his former governmental body. Confidential Opinion 93 -005. Further, the term "Person" includes a new government employer which is represented Higginbotham, 96 -543 April 19, 1996 Page 7 by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. Having set forth the above restrictions, your specific inquiries shall now be reviewed. In response to your first specific inquiry, the restrictions set forth above would apply to restrict representation of your new employer before your former governmental bodies, regardless of the nature of the issue or matter. In response to your second specific inquiry, conceptually, one could represent a new employer before individual members of the former governmental body in their completely distinct and separate roles because, absent any representation ag, to the former governmental body, such would not constitute representation before "the former governmental body." In response to your third specific inquiry, you are advised as follows. To the extent you would be representing your new employer before an Allegheny County Commissioner, such conduct would be prohibited regardless of the issue involved. To the extent your conduct would not constitute prohibited "representation" before your former governmental body, it would not be restricted by Section 3(g). In response to your fourth and final specific inquiry, Section 3(g) would not preclude your attendance as a member of the general public at a public meeting of the Allegheny County Board of Commissioners, so long as you would not engage in any prohibited representation, for example, as a representative of your new employer. 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. 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. Specifically not addressed herein is the applicability of the County Code. Conclusion: In your former capacities as Director of the Allegheny County Department of Aviation and as a Member of the Board of the Allegheny County Sanitary Authority ( ALCOSAN), you would be considered a public official /public employee as defined in the Ethics Law. Upon termination of service, you would become a "former" public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental bodies are Allegheny County in its entirety and ALCOSAN. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Hiaainbotham, 96 -543 April 19, 1996 Page 8 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. 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 thirty (30) 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 thirty (30) days may result in the dismissal of the appeal. Vincent J` Dopko Chief Counsel