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HomeMy WebLinkAbout96-534 WittingApril 2, 1996 John Frederick Director /Recycling Coordinator Blair County Intermunicipal Recycling Committee 1218D Pleasant Valley Blvd. Altoona, PA 16602 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL 96 -534 Re: Conflict; Public Official /Employee; Intermunicipal Recycling Committee; Licensing; Purchase of Recycling Firm; Former Public Employee; Section 3(g). Dear Mr. Frederick: This responds to your letters of February 20, 1996 and February 28, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a public employee as to the prospective purchase of a recycling firm which is regulated by his governmental body, where the public employee intends to resign his public position upon completing such a business transaction. Facts: As Director and Recycling Coordinator for the Blair County Intermunicipal Recycling Committee (IRC), you request an advisory on behalf of yourself and the following members of the IRC staff: Edward Witting (Witting), the Composting /Special Project Manager, who supervises the IRC composting facility and related special projects; Barbara Sweeney (Sweeney), Administrative Assistant, who fulfills typical clerical, organizational and bookkeeping duties; and James Garlick (Garlick), Equipment Operator /Laborer, who is involved in the day -to -day operational activities at the IRC compost facility. You note that Witting and Sweeney both have occasion to handle cash and checks but none of the staff writes or signs checks for the IRC. The facts which you have provided are as follows. The IRC is responsible for administering solid waste and recycling efforts in four communities in Blair County, specifically, Altoona, Logan Township, Hollidaysburg Borough, and Tyrone Borough. IRC's responsibilities include the licensing and oversight of thirty firms that collect waste and recyclables in the member municipalities. Each of the municipalities contributes to the budget of the IRC. You state that the licenses for recycling firms are limited, much as liquor licenses are limited in a given geographic area. There are no new licenses available; however, an existing firm will sometimes sell its license to collect municipal waste and Frederick, 96 -534 April 2, 1996 Page 2 recyclables to a new or other existing company. You and the aforesaid members of the IRC staff are interested in purchasing one of these firms whenever such an opportunity arises. You state that it would be your intention to resign your positions with the IRC upon completion of such a business transaction. Based upon all of the above, you request advice as to the limitations or prohibitions which would apply to you should you choose to explore the purchase of one of these businesses. Discussion: As Director and Recycling Coordinator for the IRC, John Frederick 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. Witting, in his position as Composting /Special Project Manager, would also be considered a "public employee" subject to the Ethics Law. Based upon the characterization of Sweeney's duties as Administrative Assistant, it cannot be determined whether Sweeney would be within the definition of "public employee." Based upon the characterization of Garlick's duties as Laborer, Garlick would probably not be considered a "public employee" and hence would probably not be subject to the provisions of the Ethics Law except for Sections 3(b) and 3(c) which apply to everyone. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. fderick, 96 -534 April 2, 1996 Page 3 In addition, Sections 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 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. 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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. If a conflict exists, Section 3(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. Frederick, 96 -534 April 2, 1996 Page 4 In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. ,egg, Jvllakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the instant matter, it is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89-011. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office/ employment for such a prohibited private pecuniary benefit. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. In applying Section 3(a) to the situation which you have presented, it is noted that no details have been provided as to how you and the other IRC staff members would "explore" such a business opportunity, and so this Advice must necessarily be limited to giving general advice. Section 3(a) would clearly prohibit a public employee from using his public position or confidential information to which he has access by being in that position to advance an opportunity to purchase a recycling firm. The following are hypothetical examples. If a public employee would, for example, be involved in creating the opportunity to purchase a recycling firm, such as by exercising his discretion in a fashion to pose a hardship to the operations of an existing licensee, such could constitute a basis for a conflict of interest. Likewise, if a public employee were to structure the licensing, oversight, or other IRC controls so as to favor his prospective business plans, such could transgress Section 3(a). Within the limitations of the facts which have been provided, this Advice must necessarily be limited to providing the above general guidance and hypothetical examples as to Section 3(a). In each instance of a conflict of interest, a public employee is required to abstain fully and to fully satisfy the disclosure requirements of Section 3(j) as noted above. Upon termination of public service, those of you who are presently "public employees" would become "former public employees" subject to Section 3(g) of the Public Official and Employee Ethics Law. In reviewing the restrictions of Section 3(g), the governmental body with which you have been associated while working with the IRC 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 Frederick, 96 -534 April 2, 1996 Page 5 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 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 have been associated upon termination of public service would be the IRC in its entirety. 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 Shaw, 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 IRC, Section 3(g) of the Ethics Law would apply and would restrict representation of persons or new employers vis -a -vis the IRC in its entirety. 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. Frederick, 96 -534 April 2, 1996 Page 6 In respect to the one year restriction against such "representation," the Ethics Law defines "Represent" as follows: 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 Pocovich, 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 -011. Therefore, within the first year after termination of service, you should not engage in any of the prohibited activities outlined above. As "former public employees, you could assist in the preparation of any documents presented to the IRC. However, you could not be identified on documents submitted to the IRC. You could also counsel any person regarding that person's appearance before the IRC. Once again, however, the activity in this respect could not be revealed to the IRC. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the IRC to secure information which is available to the general public. This could not be done in an Frederick, 96 -534 April 2, 1996 Page 7 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. 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: As Director and Recycling Coordinator for the IRC, John Frederick would be considered a "public employee" as defined in the Ethics Law. As Composting /Special Project Manager, Edward Witting would also be considered a "public employee" as defined in the Ethics Law. Based upon the description of her duties, it cannot be determined whether Barbara Sweeney as Administrative Assistant would be a "public employee" as defined in the Ethics Law. Based upon the description of his duties, James Garlick, as Equipment Operator /Laborer, would probably not be within the definition of "public employee" and therefore would probably only be subject to Sections 3(b) and 3(c) of the Ethics Law which apply to everyone. Pursuant to Section 3(a) of the Ethics Law, a "public employee" may not use the authority of his public position or confidential information to which he has access by being in that position for a private pecuniary benefit, such as, for example, to advance an opportunity of purchasing a recycling business or to structure the licensing, oversight or other governmental controls so as to favor his prospective business plans. In each instance of a conflict of interest, the public employee would be required to fully abstain and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Upon termination of service with the IRC, those of the above named individuals who are "public employees" would become "former public employees" subject to Section 3(g) of the Ethics Law. The former governmental body would be the IRC in its entirety. The restrictions as to representation outlined above Frederick, 96 -534 April 2, 1996 Page 8 would have to 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. 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 1. 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. Dop Chief Counsel