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HomeMy WebLinkAbout07-593 MunleyRyan P. Munley 727 W. Market St. Pottsville, PA 17901 ADVICE OF COUNSEL November 13, 2007 07 -593 Dear Mr. Munley: This responds to your letter of October 3, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any restrictions upon employment of a Transportation Construction Inspector following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You request an advisory from the State Ethics Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On September 28, 2007, you resigned from Commonwealth employment as a Transportation Construction Inspector for the Materials Unit of PennDOT Engineering District 5 -0 ( "District 5 -0 "). You have submitted a copy of your official PennDOT position description, which is incorporated herein by reference. A copy of the job classification specifications for your former position (job code 10620) has been obtained and is also incorporated herein by reference. You state that as a Transportation Construction Inspector with the Materials Unit of PennDOT District 5 -0, you did not have authority or influence in the process of selecting consultant firms to provide transportation construction services. Following your resignation, you will be employed as an Assistant Construction Manager with Prudent Engineering LLP ( "Prudent Engineering "), a Certified Disadvantaged Business Enterprise. Prudent Engineering provides transportation construction services to PennDOT, the Pennsylvania Turnpike Commission, and other agencies. Prudent Engineering acts as a subordinate to primary firms on these projects. You state that as an Assistant Construction Manager, you will provide administrative and technical support to the Construction Manager with regard to marketing, recruiting, and staffing for transportation construction projects, including projects for PennDOT, the Pennsylvania Turnpike Commission, and other agencies. Your specific job duties will include: orientation of new employees /inspectors; jobsite marketing visits to meet Field Project Managers and staff; preparing monthly invoices and cost proposals for all active projects; coordinating inspector training; preparing Munley, 07 -593 November 13, 2007 Page 2 Statements of Interest; recruiting inspectors for new projects; attending mandatory PennDOT and Pennsylvania Turnpike Commission meetings for consultants; and attending conferences relating to construction practices. You seek guidance as to whether the Ethics Act would impose any restrictions upon you in your position with Prudent Engineering. In particular, you pose the following specific questions: 1. Whether you may visit the jobsite of projects for which Prudent Engineering is the subconsultant to primary firms in order to speak with Prudent Engineering inspectors and other field personnel; 2. Whether you may make contact with the Resident Engineer(s) to find out how Prudent Engineering inspectors are doing on the projects; 3. Whether you may contact the Resident Engineer(s) to resolve concerns or issues with Prudent Engineering inspectors; 4. Whether you may contact prime consultants regarding PennDOT Statements of Interest; and 5. Whether you may attend meetings, conferences, or marketing -type outings where PennDOT personnel may be in attendance. 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. In the former capacity as a Transportation Construction Inspector for PennDOT, 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. Cf., Blazer, Advice 04 -570. 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 with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you became 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 Munley, 07 -593 November 13, 2007 Page 3 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 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 if the invoices pertain to a contract that existed prior to termination of service with such governmental body. 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. Munley, 07 -593 November 13, 2007 Page 4 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 are deemed to have been associated upon termination of public service is PennDOT in its entirety, including but not limited to District 5 -0. Therefore, for the first year following termination of service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before PennDOT. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. In response to your first specific inquiry, you are advised as follows. It would appear to be impossible for you to visit the jobsite of a PennDOT project on behalf of Prudent Engineering without running afoul of Section 1103(g) of the Ethics Act. Under such a scenario, it would seem inevitable that you would reveal to your former governmental body (PennDOT) your employment with Prudent Engineering. As to your second and third specific inquiries, you are advised as follows. Conditioned upon the assumption that the Resident Engineers would not be PennDOT employees, Section 1103(g) of the Ethics Act would not prohibit you from contacting such Resident Engineers to find out how Prudent Engineering inspectors are doing on projects and /or to resolve concerns or issues with Prudent Engineering inspectors. However, in making such contacts, you would have to exercise caution to ensure that your actions would not result in prohibited representation before PennDOT. In response to your fourth specific inquiry, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from contacting prime consultants regarding PennDOT Statements of Interest as long as in so doing, you would not engage in any conduct that would constitute prohibited representation before PennDOT as set forth above. In response to your fifth specific inquiry, you are advised as follows. During the one -year period of applicability of Section 1103(g), you would generally be permitted to attend meetings, conferences or outings that would be open to the public as long as your role would not go beyond that of a general observer. However, to the extent you would attend a meeting, conference, or outing as a representative of Prudent Engineering, you would be engaging in "representation" before the attendees of such an event. If employee(s) of PennDOT would be in attendance at such an event, it would be Munley, 07 -593 November 13, 2007 Page 5 difficult if not impossible, as a practical matter, for you to attend the event without running afoul of Section 1103(g) of the Ethics Act. Cf., MacKinnon, Advice 07 -580. Based upon the facts that 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In the former capacity as a Transportation Construction Inspector for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). Upon termination of service with PennDOT, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety including, but not limited to, PennDOT Engineering District 5 -0. Section 1103(g) of the Ethics Act would restrict you from engaging in any activity that would constitute prohibited representation before PennDOT for one year following termination of Commonwealth employment. 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, since service in your former Commonwealth position has been 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 Munley, 07 -593 November 13, 2007 Page 6 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel