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HomeMy WebLinkAbout92-613Mr. Thomas R. Simchak 327 Beadling Road Pittsburgh, PA 15228 Dear Mr. Simchak: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 15, 1992 92 -613 Re: Former Public Employee; Section 3(g); Rehabilitation Supervisor; Redevelopment Authority of Allegheny County. This responds to your letter of June 9, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Rehabilitation Supervisor following termination of service with the Redevelopment Authority of Allegheny County. Facts: Noting a prior telephone conversation with Commission staff, you request an advisory from the State Ethics Commission based upon the following facts. You were previously employed by the Redevelopment Authority of Allegheny County ( "Redevelopment Authority ") in the position of Rehabilitation Supervisor. In July, 1990, an application for funding was made by the Redevelopment Authority on behalf of Housing Opportunities, Inc. to secure funding from the Pennsylvania Department of Community Affairs (DCA), with the proceeds to be used in conjunction with a program providing assistance to homeowners in foreclosure proceedings. The application for funding was approved by DCA, and a contract was executed in September, 1991 between the Redevelopment Authority and Housing Opportunities, Inc. for the purposes of carrying out the program. Your role in this.process was acting as the coordinator of the application process as well as the contact person at the Redevelopment Authority to whom representatives from Housing Opportunities, Inc. would submit applications for funding. The approval of applications submitted to the Redevelopment Authority was made by -its Executive Director. You .recently accepted a position with Housing- Opportunitiets, Inc., as ,vice. President in charge of operations. The aforementioned contract is in-place between the Redevelopment Mr. Thomas :R R. Simchak July 15, 1992 Page 2 Authority and Mousing Opportunities, Inc., and Housing Opportunities, Inc. will continue to submit applications to the Redevelopment Authority pursuant to the contract Given these circumstances and in order to avoid an "appearance" of a conflict of interest, you request an advisory to outline the restrictions of the Ethics Law upon you in your new position with Housing Opportunities, Inc. Copies of your job description and organizational chart for your former position with the Redevelopment Authority have been obtained from the Redevelopment Authority and are incorporated herein by reference. It is noted that the accompanying cover letter of Mr. Richard P. Drnevich, Director of the Redevelopment Authority, indicates that you resigned your position with the Redevelopment Authority with your last day being May 15, 1992. Discussion: It is initially noted that to the extent your request involves past conduct, such is beyond the scope of an advisory and may not be addressed. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that 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 shay then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. In this case, any questions as to conflict of interest would inherently be past conduct and may not be addressed. By definition, conflicts of interest under the Ethics Law arise for public officials /public employees. Since you no longer are employed in a public capacity, any conflicts of interest which may have arisen for you would necessarily involve past conduct. Therefore, this advisory shall discuss Sections 3(a), (b) and (c) of the Ethics Law for informational purposes. Section 3(g) will then be addressed because it would restrict your future conduct. Having set forth the above parameters for this. Advisory, in your former position as a Rehabilitation Supervisor for the Redevelopment Authority of Allegheny County ( "Redevelopment Authority "), you 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. S402; 51-Pa- Code Si .1. This conclusion is based upon:the job description, which when reviewed on an chlec ive✓ bas .s, indicat s clearly that the power exists to take: or, recommend action, of a non - ministerial- natuFe, with respect, to.. contracting, procurement, PleT214,q1 inspecting, adminis?tering or monitoring Mr. Thomas R. Simchak July 15, 1992 Page 3 grants, leasing, regulating;, auditing or other activities where the economic ,impact is greater than de minimis on the interests of another person.. 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. Pursuant to Section 3(a) of the Ethics Law, a public official/ public employee is prohibited 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 himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Pursuant to Section 3(a), a public 'official /public employee could not use the authority of_his public position or confidential information received by holding that Z4, Thomas R. Simchak July 15, 1992 Page 4 position to advance a prospective private employment opportunity. 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 informational response to the question presented. Turning to the applicability of Section 3(g) of the Ethics Law to your prospective conduct, upon termination of public service, you became a "former public employee" subject to Section 3(g) of the Ethics Law. Section 3(g) of the Ethics Law 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 request the governmental body with which you have been associated while working with the Redevelopment Authority 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 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. In applying the above definition to the instant matter, we must conclude that the governmental body with which you have been Mr. Thomas R. Simchak July 15, 1992 Page 5 associated upon termination of public service would be the Redevelopment Authority of Allegheny County 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 precedent of this Commission. Thus, in Sirolli, Opinion 90 -005, 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:- Sharp 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 Redevelopment Authority, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Redevelopment Authority. 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. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 51901, it is clear that the governmental body with which you have been associated is the Redevelopment Authority of Allegheny County 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 front their governmental body. It is noted, however, that the conflicts of interest lave is primarily concerned with financial Mr. Thomas R. Simchak July 15, 1992 Page 6 conflicts and violations of the publics trust,. The intent. of the law generally is that during the terns[ 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 wltk- the public . sector, officials or employees to Secure for himself or a new emp1cger, treatment or benefits that may be obtainable only because of his association with his former governmental body- In respect to the one year restriction aga 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. 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 by or contain the name of the former public official /employee; 4. Participating in any natters before the former " governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or empioyer before the former governmental body in relation Mr. Thomas R. Simchak July 15, 1992 Page 7 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. 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 the Redevelopment Authority. However, you may not be identified on documents submitted to the Redevelopment Authority. You may also counsel any person regarding that person's appearance before the Redevelopment Authority. Once again, however, the activity in this respect should not be revealed to the Redevelopment Authority. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Redevelopment Authority 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. 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 County Code. Conclusion: In your former capacity as a Rehabilitation Supervisor for the Redevelopment Authority of Allegheny County, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Redevelopment Authority of Allegheny County, you became a "former public employee" subject to Section.3(g) of the Ethics Law. The former governmental body is the Redevelopment Authority of Allegheny County. The restrictions . as to representation outlined above must 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 yea,r fallowing. termination of service. Mr. Thomas:- R;, Simchak July 15, 1992 Page 8 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 conaaitted 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 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 §2.12. Sincerely, 4Co A% # . Vincent J. Dopko Chief Counsel