Loading...
HomeMy WebLinkAbout90-005 HittMs. Mary E. Hitt Thorp, Reed & Armstrong One Riverfront Center Pittsburgh, PA 15222 Dear Ms. Hitt: 1990. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Robert W. W. Thomas G. Sieber Dennis C. II. Factual Basis for Determination: Hughes, Chair Brown, Vice Chair Andrews Pancoast Harrington DATE DECIDED: February 23, 1990 DATE MAILED: March 6, 1990 90 - 005 Re: Public Employee; Former Public Employee; County; Board of Property Assessment, Appeals and Review; Governmental Body; Governmental Body With Which A Public Official or Public Employee Is or Has Been Associated; Represent; Assessment Office; Tax Assessments. This Opinion is issued in response to your request of January 12, Whether Section 3(g) of the Public Official and Employee Ethics Law restricts the former manager of the commercial and industrial section of the Office of the Director of Assessments of Allegheny County from representing persons before the Allegheny County Board of Property Assessment, Appeals and Review for a period of one year after termination of service. On behalf of Realty Tax Associates (RTA) which is a Pennsylvania corporation that has recently hired Mr. Wayne D. Biernacki, you request an opinion as to the restrictions which the Ethics Law would impose upon Mr. Biernacki following termination of his employment with the County of Allegheny, hereinafter County. RTA is in the business of providing real estate tax consulting services in 34 counties (including Allegheny) to owners of commercial and industrial real estate. RTA performs reviews of the official assessments of clients' lands and buildings to determine if the properties have been equitably assessed. If RTA determines that the assessed value of the Ms. Mary E. Hitt Page 2 property is excessive, RTA then provides services to assist the client in appealing the assessment. Once an appeal is filed, RTA may testify at the hearing on the appeal regarding the value of the property as well as negotiate with the local school districts or taxing authorities to arrive at a settlement of the assessment prior to or after the initial hearing. Effective November 16, 1989, Mr. Wayne D. Biernacki resigned his position as manager of the commercial and industrial section of the Office of the Director of Assessments of Allegheny County, hereinafter Office, to become an employe of RTA. During his twenty -one years of service with the County, Mr. Biernacki's duties and responsibilities lay in the area of the assessment of real estate. While employed as manager of the commercial and industrial section of the Office, Mr. Biernacki's duties included the supervision of assessors who prepared the valuations of commercial and industrial real estate as well as the review of proposed assessments. After such review, Mr. Biernacki was responsible for recommending to the director any changes for final approval and assessment. Some of Mr. Biernacki's duties with RTA include reviewing tax records, conducting real estate tax seminars, generating reports, and reviewing quality assurances and prequalification of property values. Due to Mr. Biernacki's twenty years of experience and his expertise in the appraisal of commercial of industrial real estate, it would be beneficial to RTA's clients if Mr. Biernacki could appear before the Allegheny County Board of Property Assessment Appeals and Review, hereinafter Board, either to give testimony as to the valuation of property or to assist RTA clients in the appeal process. RTA does not intend for a period one year from termination of service to utilize Mr. Biernacki in support of seeking a reduction for a RTA client of an assessed value that Mr. Biernacki activity participated in determining or approving while employed by the Office. However, RTA would anticipate that Mr. Biernacki might provide testimony to defend an assessment if the taxing authorities had increased the assessment. In addition Mr. Biernacki would not represent clients before the Office nor would he contact the Office except in a capacity which would be permitted by law to members of the general public. You then pose six questions regarding Mr. Biernacki's conduct during the one year period after termination of service. 1. Whether Mr. Biernacki could appear at hearings before the Board on behalf of RTA clients in any capacity or for the purpose of defending an assessment against any increase requested by the taxing authorities? 2. Whether Mr. Biernacki could appear before the Board as an expert witness to testify as to his opinion of the proper valuation of land or buildings? 3. Whether Mr. Biernacki may negotiate with school districts or taxing authorities within the County on behalf of RTA clients prior to Ms. Mary E. Hitt Page 3 an appeal being filed with the Board, or after an appeal is filed but prior to a hearing before the Board or after the Board has held a hearing and issued a determination? 4. Whether Mr. Biernacki may negotiate on behalf of a client with a school district or taxing authority to settle a dispute as to an appeal which has been filed in the Court of Common Pleas prior to its resolution by the Court? 5. Whether Mr. Biernacki may participate in report generation for RTA clients if RTA employees other than Mr. Biernacki would represent them before the Board? 6. Whether Mr. Biernacki may deal with employees of the Office in order to obtain assessment valuation information which is of public record and which is available to members of the general public upon request? In considering Mr. Biernacki's relationship with his employer and the relationship between the Office and the Board, you suggest that the organizational structure of the Board and Office would not bar an appearance by Mr. Biernacki before the Board. After quoting Section 3(g) of the Ethics Law and the definitions of "represent" and "public employee ", you interpret those provisions of law to mean that a former public employe may not represent a person before the governmental body with which he has been associated. After noting that the County is of the second class and is charged with the responsibility inter alia of supervising the making of assessments and valuations, revising assessments, and hearing appeals from assessments, you note that the Board sits as the first avenue of the administrative review of its own actions, wherein appeals may be made by property owners or by taxing authorities such as school districts, municipalities or county governments. Although the Board is legally authorized to perform both appeal and assessment functions, the courts have determined that the appeal function and the assessment function are to be handled by separate governmental bodies. Because of the separation between the Board and Office, you suggest that Mr. Biernacki's appearance before the Board should not be considered as an appearance before the governmental body with which he has been associated. The genesis of the separation between the appeal and the assessment functions of the Board and Office came about as a result of protracted litigation in two cases which were consolidated for settlement: Borough of Green Tree v. Board of Property Assessment, Appeals and Review of Allegheny County, No. 341, April 1970 (C.P. Allegheny) (the "Green Tree Case ") and Borouah of Wilkinsburq v. Board of Property Assessment, Appeals and Review, No. GD -77 -18166 (C.P. Ms. Mary E. Hitt Page 4 Allegheny) (the "Wilkinsburg Case "). A study committee was appointed by the County Commissioners to study and report on assessment practices, procedures and policies in the County during the pendency of the Green Tree Case. The study committee concluded that the Board should cease functioning in its capacity as both administrator and appeal board and as a result recommended that the Board continue to perform the appeal function whereas the making and supervising of all assessments and valuations including the direction and supervising of assessors and other employees be handled by a Director of Assessments. Thereafter by Order of October 5, 1978 Judge Papadakos implemented the recommendation. The position of Director of Assessments was created and an appointment was made to that position. You argue that because Mr. Biernacki was associated with the Office and not the Board and because the Board and Office function as separate entities, the potential harm which is restricted by Section 3(g) of the Ethics Law regarding public employees realizing personal financial gain by acting in a conflict with the public trust does not exist if a former employee of the Office appeared before the Board. Further you argue that Mr. Biernacki would not be in a conflict situation because he would not be attacking an assessment he had recommended, that is, Mr. Biernacki would contest proposed increases to only those assessments which he had not activity determined while he was a public employee. III. Discussion: As the manager of the commercial and industrial section of the Assessment Office of Allegheny County, Mr. Biernacki was a public employee as that term is defined under the Public Official and Employee Ethics Law. Upon termination of his service on November 16, 1989, Mr. Biernacki became a former public employee subject to the provisions of Section 3(g) of the Ethics Law. Section 3(g) of the Ethics Law provides: 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. The following terms are defined under the Ethics Law: "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other Ms. Mary E. Hitt Page 5 establishment in the Executive, Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. "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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the followings 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. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing 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 or will be any transgression thereof but merely to provide a complete response to the question presented. Before we may address the specific questions that you have posed, we must first resolve the pivotal issue as to the governmental body with which Mr. Biernacki has been associated. To this end, it is Important that we review the legislative intent behind the amendment to the Ethics Act which resulted in changes by the General Assembly from the prior language of Section 3 (e) of Act 170 of 1978 to the current language of Section 3 (g) of Act 9 of 1989. During our sunset review process and during the debate on House Bill 75, criticism was made about our prior decisions regarding the narrow interpretation applied to the term governmental body. On February 15, 1989, an amendment was offered to the definition of "Governmental body with which a public official or public employee is Ms. Mary E. Hitt Page 6 or has been associated" to include the phrase "and subdivisions and offices within that entity." The following reflects the reason for the amendment which was subsequently adopted: This amendment deals with a narrow situation which we discovered in hearings on this subject in the Judiciary Committee last session. Employees, for instance, of the Pennsylvania Department of Transportation who worked for one engineering district were found by a decision of the Ethics Commission to be able to, immediately upon retiring or leaving employment, represent clients in practice with other parts of the Pennsylvania Department of Transportation, including their neighboring engineering district. 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, and my language simply makes it clear in the definition of "governmental body" that we are including subdivisions and offices within that entity. Lecrislative Journal of House, 1989 Session, No. 15 at 290, 291. Subsequently, on June 12, 1989 the phraseology of the definition was again amended to delete the word "entity" and substitute "governmental body ". The latter amendment was made in Senate Committee without comment. The General Assembly has thus amended the definition at issue with the intent to broaden that definition to make it more encompassing. Since the General Assembly has duly enacted this change, we must carry out the legislative intent. See 1 Pa. C.S.A. 1921(a) which provides in part: (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. See also 1 Pa. C.S.A. 1901. We also note that we have on five occasions since the passage of Act 9 of 1989 applied the provisions of Section 3(g) to determine what constituted a former public official /employee's governmental body. In Popovich, Opinion 89 -005, we determined that a public employee Ms. Mary E. Hitt Page 7 who worked in a district office of PennDot was restricted for a period of one year after termination of service to all of PennDot. The application of former governmental body was extended further in Nixon, Opinion 89 -006. In the cited case, the public employee served as the marketing director in the Department of General Service (DGS). Because the influence and input of the marketing director extended beyond DGS, we found that the former governmental body included all of DGS but could also extend to other agencies as well. In confidential Opinion, 89 -019, we opined that the former governmental body of a public employee who worked in the director's office of a municipality extended to the municipality and not merely the director's office. In Morris, Opinion 89 -026 we found that a former member of. the Pennsylvania Health Care Cost Containment Council was restricted for a one year period from representing a person before that Council. Finally, in Pollock, Opinion 89 -031, we decided that the former governmental body of a Pittsburgh City Councilmember was not merely limited to Council but to the entire City of Pittsburgh including other government units and authorities in Pittsburgh. Parenthetically, our decision in the cited case resulted in part from testimony from the Councilmember as to the inter connection and commingling of functions as to the various governmental units within the City of Pittsburgh. In light of the clear and unequivocal intent of the General Assembly that the former governmental body of a public employee is now no longer limited to specifically the area wherein he exerts influence and control, we must conclude that the governmental body with which Mr. Biernacki was associated is the Office and Board. We are mindful of the separation in the County between the Office and Board. While we do not question that the Board and Office are separate, such a division within the County is not controlling as to a determination under the Ethics Law on the question of the governmental body with which Mr. Biernacki was associated. There can be no question that whenever an appeal would come before the Board, the Board would review the assessment that was made by the Office in which Mr. Biernacki played a supervisory role regarding the preparation of valuations for commercial and industrial real estate together with making recommendations for changes or final approval of the assessments to the Director of the Office. Thus, given the inter - connection between the Board and Office, we cannot accept such a narrow limitation of the former governmental body in this case. Nixon;Pollock, supra. Ms. Mary E. Hitt Page 8 Given the language of Section 3 (g) of the Ethics Law and the accompanying definitions together with the legislative intent and prior precedent under Act 9 of 1989, it is our opinion that Mr. Biernacki's former governmental body is the Office and Board. We will now address the specific questions which you have posed seriatim. As to your first inquiry Section 3 (g) would prohibit Mr. Biernacki from appearing at hearings before the Board either to represent a client in any capacity or to defend an assessment against an increase by the taxing authorities. Such activity is restricted because the Board is part of Mr. Biernacki's governmental body and the activities he contemplates are within the restrictions set forth in the definition of represent. The same result would follow as to the second question you pose because Mr. Biernacki's representation as an expert witness before the Board would obviously be done at the behest of a client in support of their respective position as to a tax assessment. Regarding the third inquiry you raise concerning the possibility of Mr. Biernacki negotiating with school districts or taxing authorities on behalf of RTA clients either prior to an appeal being filed with the Board, or after the filing of an appeal but prior to a hearing or after the Board has held a hearing and issued an determination, Section 3 (g) of the Ethics Law would not restrict such activity subject to the following qualification. Mr. Biernacki could negotiate with a school district or taxing authority since they are not the Board or Office; however, the Ethics Law would require Mr. Biernacki to insure that such activities on his part on behalf of RTA clients would be strictly limited to the school district and taxing authorities so that Mr. Biernacki's representation would not become known or submitted through documentation to the Board. As a practical matter the foregoing restriction would probably be limited to the first two of the three scenarios presented. Your fourth inquiry, as posed in your request, would not be restricted by the Ethics Law because if a case has been appealed to the Court of Common Pleas, it would be finalized by the Board at that time and therefore Mr. Biernacki would not be restricted from negotiating on behalf of the RTA client with the school district or taxing authorities prior to the matter being adjudicated. Concerning your fifth inquiry as to whether Mr. Biernacki may participate in report generation for RTA clients if RTA employees other than Mr. Biernacki will represent them before the Board, Section 3 (g) of the Ethics Law would not restrict such activity provided Mr. Biernacki's name or participation would not be reflected in the report or made known to the Board. Ms. Mary E. Hitt Page 9 Concerning your last inquiry as to whether Mr. Biernacki may deal with employees of the Office in order to obtain assessment valuation information that is available to the public and which may be received by the general public upon request, Section 3 (g) of the Ethics Law would not restrict such activity provided that the contacts are strictly limited by Mr. Biernacki to seeking information or obtaining it upon request which is available to the general public. 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. IV. Conclusion: The former manager of the commercial and industrial section of the office of director of assessment of Allegheny County was a public employee and upon termination of service became former a public employee subject to the provisions of Section 3 (g) of the Ethics Law. Section 3 (g) of the Ethics Law would restrict the former public employee from representing any person before both the Office of Assessments as well as the Allegheny County Board of Property Assessments, Appeals and Review for a period of one year after termination of service. The representation restrictions would apply to representing clients generally or in a capacity of defending increases of assessments and appearing as an expert witness at the Board. Section 3 (g) would not restrict the former public employee from negotiating with taxing authorities either prior to or after the filing of an appeal with the Board or after hearing has been held by the Board which has issued a determination providing the former public employee insures that such activities on his part are not made known to the Board directly or through various documentation. Section 3 (g) of the Ethics Law would not restrict a former public employee from becoming involved in negotiations after a matter is appealed from the Board to the Court of Common Pleas. In addition, the former public employee may through his new employer participate in report generations for clients provided his name or his participation is not included in such reports nor is made known to his former governmental body. Lastly, the former public employee may under the Ethics Law obtain assessment or valuation information and deal with employees of the Board or Office provided that such activities on his part are limited to those made by members of the general public. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 Ms. Mary E. Hitt Page 10 facts and given. This such. committed the acts complained of in reliance on the advice letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By t - Commission 74/ elena G. Hughes, Chair