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Home My WebLink About84-019 HaganMs. Eileen R. Hagan 2580 Brookwood Street Harrisburg, PA 17104 Re: DCA; County Employee; Section 3(e) Dear Ms. Hagan: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 27, 1984 OPINION OF THE COMMISSION 84 -019 You ask what restrictions, if any, you face as an ex- employee of the Department of Community Affairs (DCA) under the Ethics Act. Until sometime in September you served as a Housing Analyst III with DCA in the Division of Community Development and the Bureau of Housing and Development. In this capacity you were responsible, for: 1) reviewing and processing applications for state grant funds under the Redevelopment Assistance Program (RAP) and for urban renewal, neighborhood conservation, demolition and other blight prevention programs from municipalities, as well as from housing and redevelopment authorities across the Commonwealth; and 2) identifying and recommending items for development of Division policy; and 3) providing technical services and assistance on specific programs and operations to housing and redevelopment authorities, local governments and non - profit housing corporations. While serving with DCA you were considered a "public employee" and you were required to and did file the Financial Interest Statements under the Ethics Act. Ms. Eileen Hagan December 27, 1984 Page 2 Effective on September 17, 1984 you have accepted a new job with Montgomery County, hereinafter the County. You will serve the County as their Housing Coordinator within the County's Community Development Office. You will be responsible for programs funded largely with federal Community Block Development Grant (CBDG) funds, though some of the programs will involve state assistance from DCA. As Coordinator you will administer these programs. While you may need assistance from DCA in certain areas -- a service regularly provided to local governments by DCA -- you state you will not be "involved in requests for financial aid." Given these facts you seek our opinion of the application and parameters of the restriction of Section 3(e) of the Ethics Act to your situation. III. Applicable Law: The law to be applied to this question is as follows: Section 2. Definitions. Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). IV. Discussion: "Person." A business, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 P.S. 402. It is clear that if you were a "public employee" while you are serving with DCA, when you terminated your relationship with DCA you became a "former public employee" subject to the restrictions and obligations set forth in Section 3(e) of the Ethics Act. Thus, when you terminated your relationship with DCA the restrictions set forth in Section 3(e) of the Ethics Act arose and which prohibit you as a "former public employee ", from representing any "person" before the "governmental body" with which you have been associated for a one -year period following your termination of service with DCA. We must discern the "governmental body" with which you are associated while serving with DCA. Generally, this question turns on an analysis of which bodies you served and where you, as a public employee, had influence, responsibility, supervision or control. See Ewing, 79 -010 and Kury v. State Ethics Commission 435 A. 2d 940 (1981). Ms. Eileen Hagan December 27, 1984 Page 3 From your job description and based upon the facts and information you supplied or made available to us, your jurisdiction, responsibilty, supervision, and control while serving with DCA extended to the Division of Community Development (the Division) and the Bureau of Housing and Development (the Bureau). Thus, the "governmental body" or bodies with which you are deemed to have been associated are the Division and the Bureau. Therefore, within the first year after you leave state service, Section 3(e) would apply and restrict your "representation" of "persons" vis -a -vis the Division and the Bureau. The main question remaining in this case is whether the County, as your new employer, is a "person" as defined in the Ethics Act which you could not "respresent" for the one -year period with respect to the Division and the Bureau. Before proceeding to review this question, we note that our prior Opinions in Cohen, 79 -045 and Hunt, 84 -017 are not dispositive this question. In Cohen, we dealt with the question of whether the transfer of an employee of one state agency (Public Utility Commission) to another state agency (the Office of the Consumer Advocate) gave rise to restrictions under Section 3(e) of the Ethics Act. We concluded that Section 3(e) did not restrict the activities of the transferred employee because the person was still a public employee and did not, by the transfer became a former public employee. Here, we deal with two different types or levels of government - DCA, on the state level and the Community Development Office of the County. Likewise, in Hunt we decided that a federal employee on loan to the state -level agency (Department of Environmetnal Resources, DER) could represent her federal employer before DER after she left DER to return to federal service. This Opinion was based upon the unique circumstances and reasons supporting the loan or exchange program between the federal and state governments under which the federal employee served with DER. As such and because no similar program exists in this case, we must address the question of whether the County you now serve is or is not a "person" as defined in the Ethics Act and what, if any, restrictions you face under Section 3(e) of the Ethics Act in serving or "representing" the County vis -a -vis the Division and the Bureau. Ms. Eileen Hagan December 27, 1984 Page 4 In this analysis we must ask whether the Legislature could be said to have intended to apply the same restrictions in this circumstance where your post - Commonwealth employer is another level of government as are clearly to be applied where a government employee leaves government and joins a private, profit- making enterprise. The Legislature defined a "person" whom you would not be able to represent for one year after leaving DCA with reference to non- governmental entities, such as a business, a corporation, a union, etc. We believe the Legislature intended to prohibit your activity or ability to represent "persons" in circumstances most likely to occur and most likely to give rise to a conflict, that is, where a government employee leaves and enters the private sector. In such a situation, the former public employee's ability to use his or her prior experience, influence, etc., with the agency he served to the new (private sector) employer's financial advantage is more apparent. Likewise, a prospective private sector employer, unlike a governmental employer, might be able and motivated to attempt to influence a public employee's judgment or conduct by the promise of future employment with the private sector employer. Thus, where your post -DCA employment is with another governmental entity, the County, those concerns the Legislature sought to address by Section 3(e) of the Ethics Act are allayed or reduced because the County cannot be expected to seek to influence DCA or its employees in the same manner as a non- governmental "person" or prospective employer would. Therefore, the restrictions of Section 3(e) would not be applicable should you as a County employee be required to represent the County before DCA, in general, or the Division or Bureau, in particular. V. Conclusion: Upon termination of your service with the Commonwealth you became a "former public employee," but for the reasons set forth above, Section 3(e) does not restrict your ability to represent the County before the Division or the Bureau or DCA, generally. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Ms. Eileen Hagan December 27, 1984 Page 5 Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /sfd By the Commission, HE'• 'T B. CONNER C airman •