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HomeMy WebLinkAbout07-596 AccurtiDante C. Accurti Senior Advisor Delta Development Group, Inc. 2000 Technology Parkway Suite 200 Mechanicsburg, PA 17050 -9407 Dear Mr. Accurti: ADVICE OF COUNSEL November 28, 2007 07 -596 This responds to your letter of October 24, 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 Planning Manager 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. You were formerly employed as a Transportation Planning Manager with PennDOT. The submitted facts do not disclose the date that you retired from your employment in your former position. You have submitted copies of your official PennDOT position description and the job classification specifications for your former position (job code 11682), both of which documents are incorporated herein by reference. You state that in your former position with PennDOT, you were the manager of the community programs section in PennDOT's Center for Program Development and Management. You were responsible for the following four programs that utilized federal funds: Transportation Enhancements ( "TE "); Home Town Streets ( "HTS "); Safe Routes to School ( "SRTS "); and Scenic Byways ( "SB "). You state that your duties included the following: • Preparing guidance material pursuant to federal guidelines; • Preparing application forms and procedures; • Preparing lists of applications recommended for approval; • Assisting in the development of press releases and public notification documents; Accurti, 07 -596 November 28, 2007 Page 2 • Developing program monitoring databases; • Responding to inquires regarding program eligibility and funded applications; and • Monitoring federal appropriations and program draw downs. You state that in an application funding cycle, available program funding for the TE, HTS, and SRTS programs was prorated to Metropolitan Planning Organizations ("MPOs "), Rural Planning Organizations ( "RPOs "), and the Secretary of Transportation. POs, RPOs, and the Secretary of Transportation made recommendations with respect to applications for such funding, which recommendations were compiled into one list and submitted to the State Transportation Commission for approval. Applications for the SB program were rated by your staff based upon federally established criteria, with each criterion carrying a point value and range. You state that multiple raters were used to avoid bias and that a composite score was derived for each application. The scores were then ranked and submitted to the executive office for agreement. The applications and scores were ultimately submitted to the Federal Highway Administration in Washington, D.C., for funding decisions. You state that making funding decisions was not within the scope of your job responsibilities in any of the program areas and that all of your duties dealt with programmatic tasks and functions. You recently began work with Delta Development Group, Inc. ( "Delta "), a firm that has a number of contracts with municipalities and state government agencies, including PennDOT. You state that in your current position, you interact with Delta's municipal clients. You seek guidance as to whether the Ethics Act would impose any restrictions upon you in your position with Delta. In particular, you pose the following specific inquiries: 1. Whether the Ethics Act would impose any restrictions upon you as to having contact with PennDOT; 2. Whether and to what extent any such restrictions would apply to telephone calls, email messages, meetings and the like; and 3. Whether any restrictions imposed upon you by the Ethics Act would apply as to the entirety of PennDOT or only as to the specific programs that you managed and /or the Bureau in which you worked. 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 Planning Manager 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. This conclusion is based upon the position description and the job classification Accurti, 07 -596 November 28, 2007 Page 3 specifications, which when reviewed on an objective basis, indicate 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 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. Accurti, 07 -596 November 28, 2007 Page 4 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. 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 9 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 the Center for Program Development and Management. Therefore, for the first year following termination of your service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict `representation" of "persons" before PennDOT in its entirety. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. As to your first specific inquiry, you are advised that during the first year following your retirement from PennDOT, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties as a Delta employee that would involve prohibited representation before PennDOT as set forth above. In response to your second specific inquiry, you are advised that Section 1103(g) of the Ethics Act would restrict you from making /answering telephone calls, sending Accurti, 07 -596 November 28, 2007 Page 5 emails, or attending meetings where engaging in such activity(ies) would involve prohibited representation before PennDOT as delineated above. Cf., Eberts, Advice 05- 546. Your third specific inquiry has been addressed above. 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 Planning Manager 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 the Center for Program Development and Management. 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 Accurti, 07 -596 November 28, 2007 Page 6 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, Robin M. Hittie Chief Counsel