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HomeMy WebLinkAbout08-604 HardingRichard L. Harding, P.E. 145 Northwood Court Lebanon, PA 17042 -5793 Dear Mr. Harding: ADVICE OF COUNSEL December 31, 2008 08 -604 This responds to your letter dated November 25, 2008, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any restrictions upon employment of a former Civil Engineer Consultant — Bridges, who, following retirement from the Pennsylvania Department of Transportation ( "PennDOT "), returned to provide services to PennDOT in the same position as an annuitant until October 23, 2008. 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. In February 2007, you retired from Commonwealth employment as a Civil Engineer Consultant — Bridges with PennDOT's Bureau of Design, Bridge Quality Assurance Division ( "BQAD" ). Copies of your official PennDOT position description and the job classification specifications for the position of Civil Engineer Consultant — Bridges (job code 1116B) have been obtained and are incorporated herein by reference. Following your retirement from the Commonwealth, you returned to work with PennDOT as an annuitant under the 95 -day annuitant program (see, 71 Pa.C.S. § 5706(A.1)), again working as a Civil Engineer Consultant — Bridges. On October 23, 2008, you ceased providing services to PennDOT as an annuitant. You state that you have chosen to return to private practice as an engineering consultant and to pursue your specialty in airport planning and design. You state that you expect to represent clients regarding airport projects before PennDOT's Bureau of Aviation "Bureau of Aviation "). You note that you were previously employed as an Engineering Division Manager with the Bureau of Aviation until August 2004. You express your view that the Ethics Act would permit you to receive compensation from airport sponsors for providing them with technical assistance with Hardin , 08 -604 December 31, 2008 Page 2 regard to projects that existed or contracts that were executed prior to the termination of your most recent Commonwealth service on October 23, 2008. You further express your view that on or after October 24, 2009, the Ethics Act would permit you to represent airport sponsors before the Bureau of Aviation with regard to any new projects. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to working in the private sector as a consultant on PennDOT projects. 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 Civil Engineer Consultant — Bridges 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 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 retiring from the Commonwealth, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. It is clear that when a former public employee returns to service as an annuitant to again perform services falling within the Ethics Act's definition of "public employee" (see, 65 Pa.C.S. § 1102), the annuitant again becomes a "public employee" subject to the Ethics Act. See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004. Accordingly upon returning to work with PennDOT as an annuitant, working in the position of Civil p Engineer Consultant — Bridges, you again became a "public employee" subject to the Ethics Act. 65 Pa.C.S. § 1102; Graves, supra; McGlathery, supra. On October 23, 2008, when you ceased providing services to PennDOT as an annuitant, you once again became a former public employee subject to the restrictions of Section 1103(g) of the Ethics Act. Graves, supra; McGlathery, supra. 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. Hardin , 08 -604 December 31, 2008 Page 3 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 /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 Hardin , 08 -604 December 31, 2008 Page 4 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. Under the facts that you have submitted, on October 23, 2008, when you ceased providing services to PennDOT under the 95 -day program for annuitants, you again became a "former public employee" subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) began anew. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is PennDOT in its entirety, including but not limited to the Bureau of Design. Therefore, until the expiration of a full one -year period following your October 23, 2008, termination of service as an annuitant with PennDOT, or until you would resume providing services to PennDOT as an annuitant in a position falling within the Ethics Act's definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute prohibited representation before PennDOT as set forth above. You are further advised that when Section 1103(g) would be applicable, if you would perform work on PennDOT contracts that existed before you terminated employment with PennDOT, and if such contracts would not involve the "unit" of PennDOT where you formerly worked, specifically the Bureau of Design, your name could appear on routine invoices submitted to PennDOT as to those particular pre- existing contracts if required by the regulations of PennDOT. However, the foregoing is limited to the submission of billing hours. Section 1103) of the Ethics Act would still prohibit you from: (1) having contact with PennDOT or PennDOT personnel on behalf of a private employer or client; or (2) otherwise engaging in conduct falling within the ambit of prohibited representation as set forth 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 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. Hardin , 08 -604 December 31, 2008 Page 5 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: In the former capacity as a Civil Engineer Consultant — Bridges with the Pennsylvania Department of Transportation ( "PennDOT "), Bureau of Design, Bridge Quality Assurance Division ( "BQAD "), 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 retiring from the Commonwealth in February 2007, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. Upon returning to work with PennDOT as an annuitant, again working in the position of Civil Engineer Consultant — Bridges, you again became a "public employee" subject to the Ethics Act. On October 23, 2008, when you ceased providing services to PennDOT as an annuitant, you again became a `former public employee" subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) began anew. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is PennDOT in its entirety, including but not limited to the Bureau of Design. Until the expiration of a full one -year period following your October 23, 2008, termination of service as an annuitant with PennDOT, or until you would resume providing services to PennDOT as an annuitant in a position falling within the Ethics Acts definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute prohibited representation before PennDOT as set forth above. When Section 1103(g) would be applicable, if you would perform work on PennDOT contracts that existed before you terminated employment with PennDOT, and if such contracts would not involve the "unit" of PennDOT where you formerly worked, specifically the Bureau of Design, your name could appear on routine invoices submitted to PennDOT as to those particular pre- existing contracts if required by the regulations of PennDOT. However, the foregoing is limited to the submission of billing hours. Section 1103(g) of the Ethics Act would still prohibit you from: (1) having contact with PennDOT or PennDOT personnel on behalf of a private employer or client; or (2) otherwise engaging in conduct falling within the ambit of prohibited representation as set forth above. Act. The propriety of the proposed conduct has only been addressed under the Ethics 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 Hardin , 08 -604 December 31, 2008 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