HomeMy WebLinkAbout08-522 LUBENJerilyn D. Luben, P.E.
168 Watts Hill Road
Honesdale, PA 18431
Dear Ms. Luben:
ADVICE OF COUNSEL
February 27, 2008
08 -522
This responds to your letter received January 29, 2008, by which you requested
an advisory from the Pennsylvania 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 Civil
Engineer Manager — Transportation following termination of service with the
Commonwealth of Pennsylvania Department of Transportation ( "PennDOT ").
Facts: You request an advisory from the Pennsylvania State Ethics Commission
regarding the post - employment restrictions of the Ethics Act. You have submitted facts
that may be fairly summarized as follows.
At the time that you submitted your inquiry, you were employed with PennDOT
as a Civil Engineer Manager — Transportation in Engineering District 4 -0. You have
submitted a copy of the PennDOT job description for a Civil Engineer Manager —
Transportation, which is incorporated herein by reference. A copy of the job
classification specifications for your position (job code 1115T) has been obtained and is
also incorporated herein by reference.
In your advisory request, you stated that you planned to retire from PennDOT on
February 1, 2008. You have teamed with a private consultant to form an engineering
consulting firm ( "the Firm "). Your partner is President of the Firm. You ask whether the
Ethics Act would impose any restrictions upon you with regard to working on PennDOT
projects during the first year following your retirement.
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 a Civil Engineer Manager — Transportation for PennDOT, you would be
considered a "public employee" subject to the Ethics Act and the Regulations of the
Luben, 08 -522
February 27, 2008
Page 2
State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This
conclusion is based upon the job description and the job classification 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 would become a "former
public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) of the Ethics Act 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.
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February 27, 2008
Page 3
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 /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 /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 deemed to have been
associated upon termination of public service would be PennDOT in its entirety,
including but not limited to Engineering District 4 -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.
You are advised that for the first year following termination of your employment
with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from working on a
PennDOT project unless you would be able to do so without engaging in prohibited
representation before PennDOT as outlined 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 or give 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
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February 27, 2008
Page 4
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. Specifically not addressed herein is the applicability of the Governor's Code
of Conduct.
Conclusion: As a Civil Engineer Manager - Transportation 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 would become a former public employee subject to the restrictions of
Section 1103(g) of the Ethics Act. The former governmental body would be PennDOT
in its entirety, including but not limited to Engineering District 4 -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, to the extent the aforesaid Commonwealth employment 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
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