HomeMy WebLinkAbout92-540Mr. Janes R. Leister, P.E.
Cowan Associates, Inc.
120 Penn -Am Drive
P.O. Box 949
Quakertown, PA 18951
Dear Mr. Leister:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 19, 1992
92 -540
Re: Conflict, Public Official /Employee, Township Engineer,
Former Public Employee, Section 3(g), Representation of
Clients before Township.
This responds to your letter of January 10, 1992, in which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a former township
engineer in professionally representing a developer with regard
to the proposed purchase of a shopping center within the
township, where the shopping center proposal was reviewed by the
township engineer; reports have already been provided to the
township regarding the shopping center and are public records;
and the proposed representation would involve representing the
developer before the township within one year following
termination of service as the township engineer.
Facts: As President of Cowan Associates, - Inc., a firm which your
letterhead indicates includes engineers, designers, and
surveyors, you seek the advice of the State Ethics Commission
regarding the applicability of Section 3(g) of the Ethics Law
under the following circumstances.
Your firm was an - appointed Township Engineer and was
relieved of that position in November, 1991. You were generally
the main contact with the Township, - although one staff member
handled the majority of the code compliance reviews related to
zoning and subdivision /land development applications. You note
that these reviews were generated into ,feral = reports to the
Township, which were finalized by-and signed by you.
Mr. James R. Leister, P.E.
February 19, 1992
Page 2
One partner reviewed issues related to environmental items
consisting primarily of sanitary sewerage, regarding any
development /subdivision proposals.. A second partner, per the
request of the Township, is completing a public works project the
firm had been involved with prior to November, 1991. The project
was assigned to that partner by you.
You have recently been contacted by a developer who has been
approached by a developer involved with a proposed shopping
center within the Township. You reviewed the proposal as
Township Engineer.
The proposed shopping center has received preliminary
approval with conditions.
You pose the following specific inquiries. First, you ask
whether you can meet with the prospective purchaser, where the
purpose of the meeting is the evaluation by the prospective
purchaser and review of issues and reports provided to the
Township which are public information and should be on file in
the municipal offices. Secondly, if the developer does purchase
the shopping center, you ask whether you can provide your
services to the new owner regarding finalization of the plan and
representing him before the municipality for approval prior to
November, 1992. Lastly, you ask ,whether you can provide
services in the Township that do not require any involvement with
the municipal administration and /or officials prior to November,
1992. You note that these services could include a property
survey for a Township •resident, construction survey control,
and /or management for a contractor.
Based upon all the above, you request an advisory from this
Commission.
Discussion: It is initially noted that although you have posed
your inquiry with regard to the applicab ...lity of Section 3(g) of
the Ethics Law, to provide a complete analysis of the application
of the Ethics Law to you, other provisions must and shall be
adareed;
As a Tgwnshap Engineer, you would be a public employee as
that_ t is def.ned under the Ethics Law, and hence you would
be subject tq the p of that- law.
Section 3(a) . o ;the, Ethics Law provides:
Section 3. Restricte4 Activities.
Mr. James R. Leister, P.E.
February 19, 1992
Page 3
(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.
"Business with which he is associated."
Any business in which the person or a member
of the person's immediate family is - a
director, officer, owner, employee or has a
financial interest.
Mr. James R. Leister, P.E.
February 19, 1992
Page 4
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(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 .t conflict of
interest shall abstain from votir..g 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.
Mr. James R. Leister, P.E.
February 19, 1992
Page 5
In applying the above provisions`of the Ethics Levi Section
3(a) of the Ethics Law prohibits a public official /public
employee from using the authority of public office /employment or
confidential information received by holding such a public
position for the private pecuniary benefit of the public
official /public employee, a member of his immediate family, or a
business with which he or a membet of his immediate family is
associated.
The Commission has specifically found violations of Section
3(a) of the Ethics Law where a municipal engineer reviewed or
approved plans for private clients Or persons with whom there was
a private business relationship. See Ferrero, Order No. 720:
The Commission has held that a public official /public employee
gust refrain from official participation in projects or proposals
from private business interests when the project or the proposal
is subject to the public official's /public employee's review when
either of two situations occur:
1. The official /employee seeks or can
legitimately anticipate performing services
for that business entity.
2. The official /employee has obtained work from
that business entity and subsequently is
asked to vote on matters relating to said
entity which arose after the official/
employee obtained the work services from that
entity.
Widmer, Order. No. 608 -R (citing Sowers, Opinion 80 -050).
Although you are no longer a public employee, the requisite
element of a private pecuniary benefit in establishing a conflict
of interest as to conduct while serving as a ` public employee
could be. `found in any private business services sought or
legitimately anticipated during such public service. This would
be true even if the private pecuniary benefit was not actually
obtained until after leaving the public position.
Thus, this Advice expressly assumes and is conditioned upon
the assumptions that while serving as the Township Engineer, you
neither sought nor: could legitimately anticipate performing
services for, the developer which seeks your professional .
representation with regard to the proposed shopping center,
that you did not obtain any work from that business entity while
serving as the Township Engineer , prior =to official activity
with regard to that client.
Mr. James R. Leister, P.E.
February 19, 1992
Page 6
Turning now to your first specific inquiry, you ask whether
your firm may meet with the prospective purchaser for the purpQme
of evaluating the prospective purchaser and for reviewing the
issues and reports provided to the township which are public
information and should be on file in the municipal offices.
Section 3(a) does not apply to restrict individuals or firms with
regard to their private business activities, but rather,
restricts the conduct of public officials /public employees.
Thus, the Ethics Law would not restrict you from private business
activities with your clients. However, as noted above, a public
official /public employee may not use the authority of office or
confidential information received by holding such a public
- position for a prohibited private pecuniary benefit, even if the
private pecuniary benefit is actually received after leaving
public service. The postponed receipt of a private pecuniary
benefit would not circumvent the restrictions of Sections 3(a),
3(b), or 3(c). Thus, compensation for services rendered in a
private capacity after leaving public service may nevertheless
constitute a private pecuniary benefit with regard to any prior
official conduct related to the private client. Similarly, a
postponed private business opportunity could nevertheless
constitute the requisite "thing" of monetary value forming the
basis for a Section 3(b) and /or 3(c violation.
Your third specific inquiry will be addressed out of turn.
You ask whether you can provide services in the Township that do
not require any involvement with the Township administration
and /or officials prior to November -1992. You exemplify these
services as including a property survey for a Township resident,
construction survey control, and /or management for a contractor.
Subject to the qualifications noted above the Ethics Law would
not restrict you in your private business dealings with your
clients.
Finally, your second specific inquiry must be addressed.
You ask whether, if the developer does purchase the shopping
center, you could provide your services to the new owner
regarding finalization of the plans and representing him before
the municipality for approval prior to November 1992. Subject to
the qualifications noted above, the Ethics Law would not restrict
your private business dealings with the private client itself.
However, Section 3(g) of the Ethics Law would restrict you with
reg ard to representing persons before your former governmental
bod y.
Upon termination of public service, you became a "former
public employee" subject to Section 3(g) of the Public Official
Mr. James R. Leister, P.E.
February 19, 1992
Page 7
and Employee Ethics ,Law. 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.
Initially, to answer your second specific inquiry the
governmental body with which you have been associated while
working with the Township 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
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.
In applying the above definition to the instant matter, we
must conclude that the governmental body with which you have been
associated upon termination of public service would be each and
every _Township governmental body for which you served as the
Engineer. The above is based . upon the -language of the Ethics
Law, the legislative intent (Legislative Journal of House, 1959
Session, No. 15 at 290, 291) and the p or precedent of this
Commission - . Thus, in Sirolli, Opinion 90.006, the Commission
found that a former Division Director f the Department of Piiblic
Welfare. (DPW) was not merely rest to the particular
Division as was contended but was .in,fact restricted to all of
DPW regarding the one year representation restriction. Similarly
in Sharp, Opinion 90-009-;R, it was determined that a former
•
Mr. James R. Leister, P.E.
February 19, 1992
Page 8
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 your
public service, Section 3(g) of the Ethics Law would apply and
restrict representation of persons or new .employers vis -a -vis
each and every Township governmental body for which you served as
the Engineer.
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 fog, 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. at 290, 291.
Therefore, since the Ethics Law must be construed to
ascertain and effectuate the intent of the General Assembly under
1 Pa. C.S.A. 1901, it is clear that the governmental body with
which you have been associated is each and every Township
governmental body for which you served as the Engineer.
Turning; now to the scope of the restrictions under Section
3(g), the Ethics Law does not affect oi:e'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 govel_luiiental 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,
Mr. James R. Leister, P.E.
February 19, 1992
Page 9
treatment or benefits that may be obtainable only because of his
association with his former governmental body._
In respect to the one year restriction, against such
"representation," the Ethics Law defines "Represent" as follows
Section 2. Definitions.
"Represent." To act 6n '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.
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.
The Commission, in Popovich, 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 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.
Mr. James R. Leister, P.E.
February 19, 1992
Page 10
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. In Shay, Opinion 91 -012, the Commission held
that Section 3(g) would prohibit 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 pertained to a contract which existed prior to
termination of public service.• Therefore within the first year
after termination of service, you should not engage in the type
of activity outlined above.
You may assist in the preparation of any documents
presented to your former governmental body so long as you are not
identified as the preparer. You may also counsel any person
regarding that person's appearance before your former
governmental body. Once again, however, the activity in this
respect should not be revealed to the former governmental body.
Of course, any ban under the Ethics Law would not prohibit or
preclude the making of general informational inquiries of the
former governmental body to secure information which is available
to the general public. 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.
As indicated above, the period of applicability for Section
3(g) is one year following termination of service. Therefore,
under Section 3(g) of the Ethics Law, you would not be permitted
to represent your private clients before the former governmental
body for approval prior to the expiration of the one year period
of applicability of Section 3(g).
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. Specifically
not addressed herein is the applicability of the First or Second
Class Township Codes.
Conclusion: As a Township Engineer, you would be considered a
"public employee" as defined in the Ethics Law. Upon termination
of serviee with the, Township, you would become a "former public
employee ". In your capacity as a public employee, you would be
required to observe and comply with the provisions of Sections
3(a), 3(b), 3(c), and 3(j) set forth above. As a former public
employee, you would be subject to Sections 3(b), 3(c) and 3(g) of
Mr. James R. Leister, P.E.
February 19, 1992
Page 11
the Ethics Law set forth above. The former governmental body is
each and every Township governmental body for which you served as
the Engineer.. Subject to the express conditions, restrictions
and qualifications noted above, the Ethics,Law would not restrict
your private business dealings with private clients, including a
developer who proposes to purchase a shopping center for which
shopping center you reviewed a proposal as Township Engineer.
The restrictions of Section 3(g) as to representation outlined
above must be followed and observed during the one year period of
applicability following termination of service as Township
Engineer. 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.
such.
This letter is a public record and will be made available as
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 formal Opinion from the
Commission will be issued. Any such appeal must be in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
Sincerely,
Vincent J. Dopko
Chief Counsel