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HomeMy WebLinkAbout05-602 McMahonRaymond W. McMahon 211 Constitution Avenue Bradford, PA 16701 Dear Mr. McMahon: ADVICE OF COUNSEL December 6, 2005 05 -602 Re: Former Public Employee; Section 1103(g); Executive Director; Office of Economic and Community Development, City. This responds to your letter of October 31, 2005 by which you requested an advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. 1101 et seq., presents any restrictions upon employment of an Executive Director following termination of service with the Office of Economic and Community Development of the City of Bradford. Facts: You have been employed as the Executive Director for the Office of Economic and Community Development ( "OECD ") of the City of Bradford ( "City ") for approximately twenty years. You report directly to the Mayor of Bradford. Your job responsibilities include planning, implementing and managing of a wide variety of economic and community development activities undertaken in the Bradford area. You have submitted a copy of your job description, which is incorporated herein by reference. In addition to the above, you are the Secretary of the Bradford Economic Development Corporation and the McKean County Economic Development Council, two non - profit economic development corporations, the McKean County Industrial Development Authority, and the McKean County Hospital Authority. You state that you have not been appointed by the Mayor or City Council to any of the foregoing entities. Staff of the OECD provides services to the Bradford Economic Development Corporation, the McKean County Economic Development Council, the McKean County Industrial Development Authority, and the McKean County Hospital Authority, for which the OECD receives compensation. Such services include attending meetings, undertaking various assignments, and coordinating activities. You are also part of the Impact Bradford 11 Planning Group, which is planning a major community and economic development initiative called Impact Bradford 11. The Impact Bradford 11 Planning Group consists of representatives of Zippo Manufacturing McMahon, 05 -602 December 6, 2005 Page 2 Company, Bradford Regional Medical Center, University of Pittsburgh Bradford, Bradford Area School District, and American Refining Group. You state that you previously worked with this planning group as Executive Director of OECD. In January 2006, you plan to retire from the City. In February 2006, you will be employed as Economic Development Director for McKean County ("County') and you will report to the County Commissioners. Based upon the foregoing facts, you pose the following eight inquiries: 1. Whether you would be prohibited from making any representations to the Mayor or City Council of the City of Bradford during the one -year period of restricted activity; 2. Whether you would be prohibited from making any representations to employees of OECD during the one -year period of restricted activity; 3. Whether you would be permitted to respond to questions or requests for information from OECD employees who would contact you about various projects that you worked on during your employment as OECD Executive Director; 4. Whether you may continue to remain on the boards of the Bradford Economic Development Corporation, the McKean County Economic Development Council, the McKean County Industrial Development Authority, and the McKean County Hospital Authority, and whether you may engage in discussions with the OECD staff with respect to the business of those entities during the one -year period of restricted activity. 5. Whether you would be permitted to be actively involved in helping OECD with coordinating a community based fund drive to support the restoration of Old City Hall, which fund drive would be supported by the Mayor and City Council; 6. Whether as the Economic Development Director for McKean County, you would be permitted to work with the Impact Bradford 11 Planning Group provided that during the one -year period, you would not make any presentations to the Mayor, City Council or to OECD; 7. Whether you would be permitted to continue to remain a member of the Impact Bradford 11 Planning Group and coordinate the planning of Impact Bradford 11 even if the OECD is part of the planning group; and 8. Whether as the Economic Development Director for McKean County, you may access information available in the files of the OECD through direct contact with OECD staff or through another County employee a County Commissioner. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. As the Executive Director for the Office of Economic and Community Development ( "OECD ") of the City of Bradford ( "City "), you would be considered a "public 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. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature McMahon, 05 -602 December 6, 2005 Page 3 with respect to one or more of the following: contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment, 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 McMahon, 05 -602 December 6, 2005 Page 4 the former public official /public 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. 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 former ublic official /public employee may not be identified on documents submitted to the former governmental body. The former 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 /public 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 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you would be associated upon termination of public service would be the City in its entirety including, but not limited to, OECD. Therefore, for the first year after termination of service with the City, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the City. See, Gagliardo, Order 1369. Having established the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall now be addressed. In response to your first and second questions, Section 1103(g) of the Ethics Act would prohibit you from making representations before the Mayor, City Council, and OECD during the one -year period of restricted activity; In response to your third question, you would not be permitted to respond to questions or requests for information from OECD employees who would contact you about various projects that you worked on during your employment as OECD Executive Director because you would be engaging in prohibited representation contrary to Section 1103(g) of the Ethics Act. In response to your fourth question, you may continue to remain on the boards of the Bradford Economic Development Corporation, the McKean County Economic McMahon, 05 -602 December 6, 2005 Page 5 Development Council, the McKean County Industrial Development Authority, and the McKean County Hospital Authority and engage in discussions with the OECD staff with respect to the business of those entities during the one -year period of restricted activity as long as such discussions are without promised or actual compensation. In response to your fifth question, Section 1103(g) would not prohibit you from helping OECD with coordinating a community based fund drive to support the restoration of Old City Hall assuming your participation would take place separate and apart from your employment and would occur without promised or actual compensation. In response to your sixth question, as the Economic Development Director for McKean County, you would be permitted to work with the Impact Bradford 11 Planning Group provided that during the one -year period, you would not have any prohibited interaction or contact with the Mayor, City Council or OECD. In response to your seventh question, you would be permitted to continue to remain a member of the Impact Bradford 11 Planning Group and coordinate the planning of Impact Bradford 11 so long as your activities as a planning group member would not involve prohibited interaction or contact with OECD. It would appear impossible, as a practical matter, for you to avoid such prohibited interaction or contact with OECD if OECD would be part of the planning group. In response to your eighth question, as the Economic Development Director for McKean County, Section 1103(g) would prohibit you during the one -year period from directly contacting OECD staff to access non - public information available in the files of the OECD. As noted above, Section 1103(g) would not prohibit you from making a general informational inquiry to OECD to secure information that is available to the general public as long as you would not be attempting to indirectly influence OECD or to otherwise make known to OECD the representation of, or work for the new employer. Section 1103(g) of the Ethics Act would not restrict you from contacting another County employee a County Commissioner to access OECD information, whether that information would be public or non - public. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, 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 /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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 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 the Executive Director for the Office of Economic and Community Development ( "OECD ") of the City of Bradford "City "), you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with the OECD, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the City in its entirety including, but not limited to, OECD. McMahon, 05 -602 December 6, 2005 Page 6 The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, 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 requester 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