Loading...
HomeMy WebLinkAbout01-523 KoonKim T. Coon P. O. Box 121 621 Christian Street Hopewell, PA 16650 ADVICE OF COUNSEL March 2, 2001 01 -523 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 1103(i); Deputy Secretary for Community Affairs and Development; Department of Community and Economic Development; Assistant Executive Director of Marketing and Development; PSATS. Dear Mr. Coon: This responds to your letter of February 6, 2001, 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 Deputy Secretary for Community Affairs and Development following the conclusion of his service with the Commonwealth of Pennsylvania, Department of Community and Economic Development. Facts: On July 3, 2000, Governor Thomas J. Ridge appointed you to the position ooDeputy Secretary for Community Affairs and Development with the Department of Community and Economic Development ( "DCED "). As Deputy Secretary for Community Affairs and Development, you have oversight responsibility for a number of programs and initiatives related to community development, housing and local government. Your deputate includes the following: (1) the Community Development and Housing Office; (2) the Community Empowerment Office; (3) the Strategic Planning and Operations Office; (4) the Entrepreneurial Assistance Office; (5) the Governor's Center for Local Government Services; (6) the Center for Community Building; and (7) the Governor's Project for Community Building. You also serve as the Governor's alternate to the Federal Appalachian Regional Commission and as the Governor's Census 2000 liaison. You state that many of the functions within your deputate were previously housed in, or were derived in subject area from, the former Department of Community Affairs ( "DCA "). The offices under your supervision administer federal and state financed programs, principally related to housing, housing rehabilitation, weatherization, redevelopment, community revitalization, and land use. Additionally, a number of state and federal grant programs are administered though your deputate. These include programs funded through the United States Department of Housing and Urban Development, the Commonwealth's Communities of Opportunity program, and the Commonwealth's Community Revitalization Grant program, among others. Coon, 01 -523 March 2, 2001 Page 2 Prior to being appointed to your current position as Deputy Secretary, you served from July 1, 1996 through July 2, 2000, as the first Executive Director of the newly created Governor's Center for Local Government Services ("GCLGS "). You state that GCLGS essentially serves as a "super agency" within DCED. In addition to being the principal state entity for land use monitoring and technical assistance, GCLGS is responsible for providing training, consulting and technical assistance to local governments. As Executive Director, you managed a team of local government policy specialists. 1996. Finally, you served as Policy Director for DCA from May 1, 1995 through June The Pennsylvania State Association of Township Supervisors ("PSATS ") has approached you with the opportunity to become its Assistant Executive Director of Marketing and Development. In the proposed position, you would report to the Executive Director of PSATS. You would principally be responsible for the marketing and exposure of PSATS to its constituent groups. Your responsibilities would include: • Providing leadership in marketing PSATS to local government and expanding opportunities to deliver services and programs; • Building relationships and developing networks in the wider government community; • Gathering and exchanging information with management; • Developing a marketing plan based upon customer needs; • Leading and managing project teams to develop proposals and obtain contracts; • Developing project guidelines; • Serving as the primary liaison with customers and business partners; • Assisting the Executive Director with implementation of major initiatives; • Directing staff in the performance of job duties and responsibilities; • Monitoring and reviewing staff activities; and • Recommending, hiring, disciplining and discharging staff as warranted. You state that although your duties in the proposed position would primarily be related to marketing PSATS and its services to local governments, you have informed PSATS about the limitations imposed by the Ethics Act, and specifically, the one year prohibition against representation before DCED for the first year following the conclusion of your employment with DCED. You assure the Commission that if you would accept the proposed position with PSATS, you would not, under any circumstances, appear before DCED on behalf of PSATS —or on behalf of any client of PSATS —for at least one year following the conclusion of your Commonwealth employment. You further assure the Commission that you would not permit your name —or any references to you —to be included in materials, including proposals, submitted to DCED on behalf of PSATS —or on behalf of Coon, 01 -523 March 2, 2001 Page 3 any client of PSATS— during the one year period following the conclusion of your Commonwealth employment. You state that while PSATS is currently a party to a contract with DCED, the existing contractual relationship is limited to the provision of services in a narrow subject area unrelated to the offer of employment that you have received. Specifically, the contract is a municipal training contract entered into pursuant to the Commonwealth's Request for Proposal ( "RFP ") process. The events leading up to the said contract may be fairly summarized as follows. In 1996, DCA's Bureau of Local Government Services issued an RFP to select State Certified Municipal Training Partners to provide training to local officials in the Commonwealth. At the time, you were serving as the Policy Director for DCA, and you chaired the review committee responsible for evaluating the vendors which responded to the RFP. PSATS was one of three vendors selected by the review committee to provide municipal training for a five year term. After DCA was dissolved, the PSATS contract was administered through GCLCS at DCED. Although you were the Executive Director of GCLCS at that time, you state that you had no direct management responsibility with respect to the PSATS contract. Rather, that responsibility was delegated to the Deputy Director of GCLGS, who, in turn, assigned the task to one of the GCLGS local government policy specialists. In anticipation of the expiration of the three municipal training contracts in 2001, DCED issued another RFP in April 2000. At that time, you were still serving as the Executive Director of GCLGS and had not yet been appointed to your current position as Deputy Secretary. Once again, consistent with Commonwealth policy, a review committee was selected to evaluate vendor proposals. The Deputy Director of GCLGS chaired the review committee because of his responsibility for the oversight and management of the municipal training contracts during the prior four years. Once again, PSATS responded to the RFP and successfully obtained a contract with DCED. You represent and assure the Commission that at no time during either of the aforesaid RFP processes in 1996 and 2000 did you discuss possible employment with PSATS. You further state that you were neither aware of nor pursuing any employment opportunities with PSATS during the RFP processes. You add that you have not accepted anything of value from PSATS during the course of your employment with the Commonwealth. You emphasize that PSATS proposed the present employment opportunity to you; you did not, in any way, solicit the offer from PSATS. In addition, you state that no actions taken by you during your Commonwealth employment resulted in the creation of the position of Assistant Executive Director of Marketing and Development for PSATS. You assure that no Commonwealth funds will be used by PSATS to support the position of Assistant Executive Director of Marketing and Development for PSATS. You further assure the Commission that you have not participated in any recruitment or inducement of PSATS to expand or grow its presence within the Commonwealth, and you have not been involved in the award of any grants or loans to PSATS through DCED or through any other Commonwealth entity. You state that if you accept the position with PSATS, you will have no responsibility for the administration of or performance under PSATS' existing municipal training contract with DCED. Finally, you state that you will not represent PSATS or any constituent or client of PSATS before DCED for a period of at least one year following the conclusion of your employment with the Commonwealth. Based upon all of the above, you ask whether the Ethics Act would prohibit you from accepting employment as the Assistant Executive Director of Marketing and Coon, 01 -523 March 2, 2001 Page 4 Development for PSATS following the conclusion of your employment with the Commonwealth. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As Deputy Secretary for Community Affairs and Development with DCED, you would be considered a public official /public employee and an "executive -level State 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. Consequently, upon termination of public service, you would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: §1103. Restricted activities (i) Former executive -level employee. - -No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. §1103(i). Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of the new employer, rather than the new employer itself. See, Coon, 01 -523 March 2, 2001 Page 5 Confidential Opinion No. 94 -011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for PSATS under the submitted facts that you have not participated in any recruitment or inducement of PSATS to expand or grow its presence within the Commonwealth, and you have not been involved in the award of any grants or loans to PSATS through DCED or through any other Commonwealth entity. Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment. However, 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 ": §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 §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. 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 /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. Coon, 01 -523 March 2, 2001 Page 6 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 by 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 /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 will have been associated upon termination of public service includes: (1) the Department of Community and Economic Development in its entirety, including, but not limited to, the Community Development and Housing Office, the Community Empowerment Office, the Strategic Planning and Operations Office, the Entrepreneurial Assistance Office, the Governor's Center for Local Government Services, the Center for Community Building, and the Governor's Project for Community Building; (2) the Federal Appalachian Regional Commission; and (3) the Governor's Census 2000 program, all of which are collectively referred to hereinafter as your "former governmental body." Therefore, for the first year after the conclusion of your service with the Commonwealth of Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before your former governmental body as defined above. The restrictions of Sections 1103(a) and 1103(j) of the Ethics Act shall now be addressed. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. Coon, 01 -523 March 2, 2001 Page 7 65 Pa.C.S. §1103(a). The following terms pertaining to Section 1103(a) are defined in the Ethics Act as follows: 65 Pa.C.S. §1103(j). § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Coon, 01 -523 March 2, 2001 Page 8 In each instance of a conflict, Section 1103(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying Section 1103(a) and Section 1103(j) to your inquiry, as noted above, past conduct may not be addressed within the context of this advisory. However, conditioned upon the assumption that there has been no use of the authority of your public position(s) or confidential information received by being in such position(s) to advance the prospects of obtaining a position with PSATS or for any other private pecuniary benefit, as you have factually represented and assured the Commission, your acceptance of the position of Assistant Executive Director of Marketing and Development with PSATS would not transgress Section 1103(a) of the Ethics Act. Finally, 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 /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment 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. 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: Upon conclusion of service as Deputy Secretary for Community Affairs and Development with the Commonwealth of Pennsylvania, Department of Community and Economic Development ( "DCED "), you would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for PSATS under the submitted facts that you have not participated in any recruitment or inducement of PSATS to expand or grow its presence within the Commonwealth, and you have not been involved in the award of any grants or loans to PSATS through DCED or through any other Commonwealth entity. With regard to Section 1103(g), the restrictions as outlined above must be followed. Your former governmental body would include: (1) the Department of Community and Economic Development in its entirety, including, but not limited to, the Community Development and Housing Office, the Community Empowerment Office, the Strategic Planning and Operations Office, the Entrepreneurial Assistance Office, the Governor's Center for Local Government Services, the Center for Community Building, and the Governor's Project for Community Building; (2) the Federal Appalachian Regional Commission; and (3) the Governor's Census 2000 program. Past conduct may not be addressed within the context of an advisory from the State Ethics Commission. However, conditioned upon the assumption that there has been no use of the authority of your public position(s) or confidential information received by being in such position(s) to advance the prospect of obtaining a position with PSATS or for any other private pecuniary benefit, as you have factually represented and assured the Commission, your acceptance of the position of Assistant Executive Director of Marketing and Development with PSATS would not transgress Section 1103(a) of the Ethics Act. Coon, 01 -523 March 2, 2001 Page 9 Act. The propriety of the proposed conduct has only been addressed under the Ethics Should service be terminated, as outlined above, the Ethics Act would 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 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. Sincerely, Vincent J. Dopko Chief Counsel