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HomeMy WebLinkAbout99-559 GauthierCatherine H. Gauthier 1331 Birchwood Avenue Roslyn, PA 19001 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL June 18, 1999 99 -559 Re: Former Public Employee; Section 1 103(g); Planner; County Planning Commission. Dear Ms. Gauthier: This responds to your letter of May 21, 1999 by which you requested advice;from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of a planner following termination of service with a county planning commission. Facts: On May 7, 1999, you resigned as Planner for the Bucks County Planning Commission (BCPC). Your duties included reviewing development proposals and ordinance amendments pursuant to Act 247 of the Pennsylvania Municipalities Planning Code. On occasion you worked pursuant to a contract agreement between the County and a municipality in which you were project manager, to assist in the preparation of comprehensive plans, zoning and subdivision ordinance amendments, and other special planning studies. You also attended municipal level planning commission and board of supervisors or council meetings upon request. You attended the meetings for -the Planning Commission of Bedminster Township on a regular basis. You now have a job with the Heritage Conservancy as a part -time Senior Community Planner. The Conservancy is a nonprofit organization dedicated to preserving the natural and historic heritage of the region, that is, promoting open space, natural resource protection, wildlife habitat restoration, and biodiversity through land use planning and design, adaptive reuse of historic structures and innovative land conservation strategies. Funds are generated through private donations, foundation and government grants, contract services and property stewardship programs. Since you began working for the Conservancy you have learned that Bedminster has provided the BCPC with written notification of its intent to terminate the existing planning contract. You understand the Bedminster Township has entered into an agreement with the Heritage Conservancy to act as its planning consultant. The Township has requested that you, as Heritage Conservancy staff member, attend Township meetings and continue to provide planning assistance. You inquire about the propriety of your job change as to providing planning assistance and attending the Township meetings for Bedminster Township through your new job with the Heritage Conservancy. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Gauthier, 99 -559 June 18, 1999 Page 2 Discussion: In the former capacity as Planner for Bucks County Planning Commission, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See 65 Pa.C.S. §1102; 51 Pa.Code §11.1. This conclusion is based upon your stated job duties, which indicate that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: 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 became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": Section 1103. Restricted activities. (g) Former official or employee. - -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. 65 Pa.C.S. §1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: Section 1102. 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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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. 65 Pa.C.S. §1102. Gauthier, 99 -559 June 18, 1999 Page 3 The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits 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 that existed prior to termination of public service, Shay, Opinion 91 -012. However, if such a pre - existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required bX the regulations of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95 -011. A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the public official /public employee may not be identified on documents submitted to the former governmental body. The public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but 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. Section 1103(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you were associated upon termination of public service is BCPC in its entirety. Therefore, for the first year after termination of you service with BCPC, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before BCPC. Your former governmental body would not include Bedminster Township. Therefore, although you would be prohibited in representing persons before your former governmental body, BCPC, the restriction of Section 1 103(g) would not extend to such representation as to Bedminster Township. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1 103(a) of Gauthier, 99 -559 June 18, 1999 Page 4 the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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 Act; 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 Act. Conclusion: In the former capacity as Planner with Bucks County Planning Commission (BCPC), you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with BCPC, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is BCPC. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act vould require that a Statement of Financial Interests be filed by no later than May 1 of the :: year after termination of service. Pursuant to Section 1107(11), an 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, provided 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 forma/ 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. l7opko Chief Counsel