HomeMy WebLinkAbout08-539 WalkowiakAdam R. Walkowiak
Michael Baker Jr., Inc.
Airside Business Park
100 Airside Drive
Moon Township, PA 15108
Dear Mr. Walkowiak:
ADVICE OF COUNSEL
April 18, 2008
08 -539
This responds to your letter received February 25, 2008, and your faxed
transmission received March 13, 2008, by which you requested an advisory from the
Pennsylvania State Ethics Commission.
Issue: Whether, in your former capacity as a "Co -op" Student Employee with the
C ommonwealth of Pennsylvania Department of Transportation ( "PennDOT "), you would
be considered a "public employee" subject to the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics
Commission, such that the restrictions of Section 1103(g) of the Ethics Act would now
be applicable to you.
Facts: You state that during the past three years, you completed three rotations
as a "Co -op" Student Employee ( "Co -op Employee ") with PennDOT's District 11 -0
Engineering Office. During your final rotation, which was from May 2007 to August 15,
2007, you worked as a Co -op Employee in the District 11 -0 Consultant Agreement Unit.
You state that your responsibilities included: checking the Engineering and Construction
Management System ( "ECMS ") database for new technical and price proposals for
projects; updating the status chart that described which technical and price proposals
were received and the status of such proposals in the approval process; sending new
technical and price proposals to project managers for approval; completing worksheets
about price proposals and submitting them to your supervisor for final approval; and
making changes provided by your supervisor to scopes of work and technical proposals.
You have submitted a copy of the PennDOT Position Description that applied to
you during your aforesaid final rotation as a Co -op Employee with PennDOT. The
submitted Position Description is incorporated herein by reference. Per the PennDOT
Position Description, your duties and responsibilities as a Co -op Employee included the
following:
• Working with the Consultant Agreement Acquisition Supervisor to: create scopes
of work; create department estimates; evaluate submission requirements of
consultant statements of interest; compile balloting information; prepare final
selection information; and process and execute legal agreements, supplements,
and work orders;
Walkowiak, 08 -539
April 18, 2008
Page 2
• Creating a computer schedule for all design projects in District 11 -0;
• Monitoring progress of all schedules;
• Assisting Project Managers in tracking design activities; and
• Working with the Programming Manager on monitoring and updating program
information for the following: Transportation Improvement Program; Obligation
Plan; Requests for Federal Authorization; PMC requests and updates, MPMS
system; and District let schedule.
You are currently employed full -time with a company named "Michael Baker Jr.,
Inc." ( "Baker "). You state that your supervisor would like to begin your training as a full -
time employee by having you participate in inspection activities on projects for which
Baker is the construction management consultant. Your supervisor has requested that
you seek an official interpretation from the Pennsylvania State Ethics Commission as to
your eligibility to perform inspection activities for Baker on PennDOT projects.
You seek guidance as to whether, in your former capacity with PennDOT, you
would be considered a "public employee" as defined in the Ethics Act, such that you
would now be subject to the post - employment restrictions of Section 1103(g) of the
Ethics Act.
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.
It is further initially noted that you have not specifically indicated that in your
former capacity as a Co -op Employee with PennDOT, you stood in an employer -
employee relationship with PennDOT. This advisory is issued based upon the
assumption that in your former capacity as a Co -op Employee with PennDOT, you were
an employee of PennDOT.
In responding to your inquiry, the threshold question to be addressed is whether
in your former capacity with PennDOT, you would be considered a "public employee"
subject to the Ethics Act.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
1 contracting or procurement;
2 administering or monitoring grants or subsidies;
3 planning or zoning;
4 inspecting, licensing, regulating or auditing any
person; or
Walkowiak, 08 -539
April 18, 2008
Page 3
(5) any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa. C. S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
Walkowiak, 08 -539
April 18, 2008
Page 4
65 Pa. C. S. § 1102.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Ministerial action." An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
of the persons own judgment as to the desirability of the
action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of
the action taken.
Walkowiak, 08 -539
April 18, 2008
Page 5
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania has specifically considered and approved the Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Phillips, supra.
In applying the objective test in the instant matter, the necessary conclusion is
that, in your former capacity as a Co -op Employee with PennDOT, you would be
considered a "public employee" subject to the Ethics Act. Cf., Ketter, Advice 07 -552.
In your capacity as a Co -op Employee, you had the ability to take or recommend
official action with respect to subparagraph (5) within the definition of "public employee"
as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, per the Position
Description, you had the authority to work with the Consultant Agreement Acquisition
Supervisor to: create scopes of work and department estimates; evaluate submission
requirements of consultant statements of interest; prepare final selection information;
and process and execute legal agreements, supplements and work orders. Under the
submitted facts, the necessary conclusion is that the aforementioned authority would be
sufficient to establish status as a "public employee" subject to the Ethics Act.
The foregoing activities would also meet the criteria for determining your status
as a public employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii).
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) 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
Walkowiak, 08 -539
April 18, 2008
Page 6
"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 /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.
Walkowiak, 08 -539
April 18, 2008
Page 7
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 11 -0. Therefore, for the first year after termination of your service with
PennDOT, Section 1103(g) of the Ethics Act would apply and restrict `representation" of
"persons" before PennDOT.
With regard to your specific inquiry regarding the performance of inspection
activities on PennDOT projects, it would appear to be impossible, as a practical matter,
for you to perform inspection activities for lBaker on a PennDOT project without running
afoul of Section 1103(g) of the Ethics Act.
As noted above, the restrictions imposed upon you by Section 1103(g) of the
Ethics Act would end one year after you terminated your service with PennDOT.
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. Specifically not addressed herein is the applicability of the Governor's Code
of Conduct.
Conclusion: Based upon the submitted facts, in your former capacity as a Co -op
Student Employee ( "Co -op Employee ") 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 ("Ethics Act'), 65
Pa.C.S. § 1101 et seq. Upon termination of service with PennDOT, you became a
"former public employee" subject to Section 1103() of the Ethics Act. The former
governmental body is PennDOT in its entirety, including but not limited to District 11 -0.
During the first year following termination of your employment with PennDOT, Section
1103(g) of the Ethics Act would restrict you from engaging in any activity that would
constitute prohibited representation before PennDOT. 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 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) of the Ethics Act, an Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and evidence of good faith
Walkowiak, 08 -539
April 18, 2008
Page 8
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