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HomeMy WebLinkAbout96-583 BakerScott Baker KPMG Peat Marwick 8200 Greensboro Drive Suite 400 McLean, VA 22102 -3803 Dear Mr. Baker: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 15, 1996 96 -583 Re: Former Public Employee; Section 3(g); Port Authority; Municipal Authority; County; Director of Transit Operations; Fare System; Contract. This responds to your letter of July 9, 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 Director of Transit Operations following termination of service with the Port Authority of Allegheny County. Facts: You were employed by the Port Authority of Allegheny County (Authority) as Director of Transit Operations and Special Assistant to the Executive Director from January 20, 1993 through September 1, 1995. As Special Assistant, you led special projects including an analysis of labor legislation and the conversion of the Authority's information system to client server technology. As acting Director of Transit Operations, you were responsible for the scheduling and day -to -day operations of the bus and rail systems. A copy of your job description for the Director of Transit Operations position as well as an organizational chart of the Operations Division was obtained from the Authority and is incorporated herein by reference. You are now employed as a Senior Manager at KPMG Peat Marwick (KPMG) in the Transportation Consulting Practice. You state that you have no ownership or equity interest in the firm. KPMG is a liability limited partnership with no individual holding more than 1% interest in the firm. Your specific inquiry involves a contract between the Authority and KPMG for design of a fare system and whether your involvement in such a contract would constitute a conflict of interest for you. According to RFP96 -09 issued by the Authority in June, 1996, the scope of the work would be "data collection and analysis, analysis of Authority's fare system, developing fare model(s) that meet Authority goals and recommending changes to fare structure, producing required documentation and making presentations." RFP96 -09 requests that proposals be Baker, 96 -583 August 15, 1996 Page 2 submitted by July 22, 1996 and the Authority has indicated that the award might be expected at the September Board Meeting with an anticipated contract date of October 1, 1996. You state that during your employment with the Authority you had no involvement with the evaluation criteria, the evaluation process, or any other aspect of project 96 -09. Discussion: In the former capacity as Director of Transit Operations with the Port Authority of Allegheny County, you would 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. Initially, to answer your request the governmental body with which you were associated while working with the Port Authority of Allegheny County 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/ employee had influence or control but extended to the entire governmental body with which the Baker, 96 -583 August 15, 1996 Page 3 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. The Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. §1901. Based upon the above, the governmental body with which you were associated upon termination of public service would be the Port Authority of Allegheny County. The foregoing conclusion is based upon the factual assumption that the Port Authority is a separate governmental body from the County and created under the Municipality Authorities Act because if it were part of the County, your former governmental body would not only be the Port Authority but the entire County. 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 the Authority, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Authority. 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: Baker, 96 -583 August 15, 1996 Page 4 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. 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 the Authority. However, you may not be identified on documents submitted to the Authority. You may also counsel any person regarding that person's appearance before the Authority. Once again, however, the activity in this respect should not be revealed to the Authority. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Authority 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. Baker, 96 -583 August 15, 1996 Page 5 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 by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. 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. Conclusion: In the former capacity as Director of Transit Operations with the Port Authority of Allegheny County, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Authority, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. Subject to the factual assumption noted above, your former governmental body is the Port Authority of Allegheny County. The restrictions as to representation outlined above must be followed. 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 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. Baker, 96 -583 August 15, 1996 Page 6 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. erely, ncent J. opk Chief Counsel 6,)