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Home My WebLink About88-537 O'MalleyMr. James M. O'Malley 312 South Braddock Avenue Pittsburgh,PA 15221 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 March 30, 1988 ADVICE OF COUNSEL 88 - 537 -►^ Re: Former Public Official: Section 3(e), City Councilmember Dear Mr. O'Malley: This responds to your letter of February 18, 1988, in which you requested advice from the State Ethics Commission. Issue:, You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the City of Pittsburgh. Facts: In your letter you state that you were formerly a councilman for eight years in the City of Pittsburgh and that your last four year term ended on December 31, 1987. After noting that the City Council of Pittsburgh, hereinafter Council, is under a Home Rule Charter and the Mayor is empowered to enter into all contracts with the Council's confirmation, you request advice under the Ethics Act as to any limitations that would be imposed upon you regarding future employment. As a councilmember of the City of Pittsburgh, you are to be considered a "public official" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission, 65 P.S. 402; 51 Pa. Code 1.1. Consequently, upon termination of this employment, you would become a "former public official" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without Mr. James M. O'Malley Page 2 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. Initially, to answer your request it is necessary to identify the "governmental body" with which you were associated while working with Council. Then, the scope of the prohibitions associated with the concept and term "representation" must be reviewed. In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewinq, Opinion 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2nd 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been Council. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be Council. Therefore, within the first year after you would leave Council, Section 3(e) of the Ethics Act would apply and restrict your "representation of persons or new employers vis -a -vis Council. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Council. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from Council. 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 this association with his former public employer. See Anderson, Opinion 83 -014; Zwikl, Opinion 85 -004. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1 Definitions. Mr. James M. O'Malley Page 3 Representation - - -Any act on behalf of any including but not limited to the following activities:. personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals,s which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in 'Section 3(e) of the Ethics Act to prohibit: 1. Personal appearance before the governmental body -or ]Rodies with which you have been associated (that is Council, including, but not limited to, negotiations or renegotiations on contracts with the Council: 2. Attempts to influence Council; 3. Participating in . any matters before Council over which you had supervision, direct involvement, or responsibility while employed by Council; 4., Lobbying, that is representing the interests of any person or employer before Council in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. The Commission has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal,_ document, or bid, if submitted to or reviewed by Council, constitutes an' attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave Council, you should not engage in the type of activity outlined above. (The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing,proposal," even if submitted to or reviewed by Council, is not prohibited as "representation." See Kotalik, Opinion 84- 007). You may, assist in the preparation of any document presented to as long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before Council. Once again, however, your activity in this respect should not be revealed to the Council. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of Council to secure information which is available to the general public. See Cutt, Mr. James M. O'Malley Page 4 Opinion 79 -023. This, of course, must to indirectly influence these entities to the Council your representation of, employer. Finally, administering renegotiating by the Ethics 81 -538. It must Section 3(e) commissions, on which you not be done in an effort or to otherwise make known or work for your new the Commission has concluded that if you are an existing contract as opposed to negotiating or a contract, your activities would not be prohibited Act. See Dalton, Opinion 80 -056 and,Beaser, Advice be noted that the above limitations imposed by of the Ethics Act would apply to any other boards, authorities, agencies or other governmental bodies served. Additionally, it is noted that Section 40a3(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body; was influenced by such offer. See 65 P.S. S403(b). 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: As a Councilman, you are to be considered a "public official" as defined in the Ethics Act. service with Council, you would become a Upon ormer publicoofficial" of our subject to the restrictions imposed by Section 3(e) of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is Council as well as any other board, commissions, authorities, agencies or other governmental entities on which you served. Lastly the propriety of your proposed conduct has only been addressed under the Ethics Act. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil Mr. James M. O'Malley Page 5 or criminal proceeding, providing the requestor has disclosed truthfully all 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 suth. 'Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of servi -ce of this Advice purl 'uant to 51 Pa. Code 2.12. cer ly,. v- cs-A- . 7 Vincent. J. Dopko General Counsel