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HomeMy WebLinkAbout09-503 WangerG. R. Wanger 3089 Stirling Road Broomall, PA 19008 ADVICE OF COUNSEL January 21, 2009 09 -503 Dear Mr. Wanger: This responds to your letter dated December 26, 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 Portfolio Manager with a job title of Senior Civil Engineer Manager following termination of service with the 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. You are currently employed as a Portfolio Manager with PennDOT in Engineering District 6 -0 ( "District 6-0"). You have submitted a copy of your official PennDOT position description, which document is incorporated herein by reference. It is noted that said position description lists your job title as Senior Civil Engineer Manager. A copy of the job classification specifications for the position of Senior Civil Engineer Manager (job code 11161) has been obtained and is also incorporated herein by reference. You state that you expect to retire in the first quarter of 2009. Following retirement, you might pursue employment with another governmental agency or an engineering consultant. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions on your activities with a new employer following termination of Commonwealth service. In particular, you pose the following specific inquiries: 1. Whether you would be permitted to represent your new employer in marketing meetings before PennDOT's Central Office or any PennDOT District (including District 6 -0), the Pennsylvania Turnpike Commission ( "Turnpike Commission "), or any other state, federal, or local agency; Warmer, 09 -503 January 21, 2009 Page 2 2. Whether you would be permitted to represent your new employer before PennDOT's Central Office or any PennDOT District (including District 6 -0), the Turnpike Commission, or any other state, federal, or local agency with regard to existing or future contracts held by such employer; 3. Whether you would be permitted to represent your new employer before PennDOT's Central Office or any PennDOT District (including District 6 -0) under existing or future contracts with the Turnpike Commission or any other federal, state, or local agency; 4. If your new employer would be a federal or local governmental agency, whether you would be permitted to represent such new employer before PennDOT or have your name appear on an invoice to PennDOT; 5. Whether your name could appear on any invoice(s) for your new employer on existing or future agreements with PennDOT's Central Office or any PennDOT District (including District 6 -0), the Turnpike Commission, or any other state, federal, or local agency; 6. Whether you would be permitted to assist in the preparation of any documents or designs for your new employer on existing or future agreements with PennDOT's Central Office or any PennDOT District (including District 6 -0), the Turnpike Commission, or any other state, federal, or local agency; 7. Whether you would be permitted to assist in the preparation of any proposals for your new employer on advertisements for proposals with PennDOT's Central Office or any PennDOT District (including District 6 -0), the Turnpike Commission, or any other state, federal, or local agency; 8. Whether you would be permitted to include your name on any proposals for your new employer on advertisements for proposals with PennDOT's Central Office or any PennDOT District (including District 6 -0), the Turnpike Commission, or any other state, federal, or local agency; 9. Whether you would be permitted to seek information -- especially if that information is available to the general public--from PennDOT's Central Office or any PennDOT District (including District 6 -0) in an effort to assist in the preparation of designs, proposals, or other deliverables to PennDOT or other agency(ies) such as the Turnpike Commission; and 10. Whether, in your role with your new employer, you would be permitted to work under the direction of a PennDOT employee as a consultant in PennDOT's Central Office or any PennDOT District Office (including District 6 -0) performing the same duties as a PennDOT employee and have your name appear on invoice(s) as a consultant in the aforesaid capacity. 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 Warmer, 09 -503 January 21, 2009 Page 3 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 Portfolio Manager for PennDOT, with a job title of Senior Civil Engineer Manager, 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 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 your employment with PennDOT, you would become 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. Warmer, 09 -503 January 21, 2009 Page 4 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. 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 would be deemed to have been associated upon termination of your employment with PennDOT would be PennDOT in its entirety, including but not limited to District 6 -0. Therefore, for the first year following termination of your employment 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. Warmer, 09 -503 January 21, 2009 Page 5 In response to your first specific inquiry, you are advised that during the first year following termination of your PennDOT employment, Section 1103(g) of the Ethics Act would prohibit you from representing your new employer in marketing meetings before any unit of PennDOT, including but not limited to the Districts and the Central Office, as such activity(ies) would necessarily involve prohibited representation of your new employer before your former governmental body. Section 1103(g) would not prohibit you from representing your new employer in marketing meetings before the Turnpike Commission or any other state, federal, or local agency provided that such activity (ies) would not involve prohibited representation before PennDOT as delineated above. With regard to your second, third, fourth, and fifth specific inquiries, you are advised as follows. During the one year period of applicability of Section 1103(g), you would be prohibited from representing your new employer (including a new governmental employer such as, for example, a federal or local agency) before any unit of PennDOT, including but not limited to the Districts and the Central Office, with regard to any matter(s), including contract(s) that such new employer would have with any entity. Section 1103(g) would not apply to restrict you from representing your new employer before the Turnpike Commission or other state, federal, or local agencies with regard to existing or future contracts. However, where the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT. Generally, during the one -year period of applicability of Section 1103(g), your name could not appear on invoice(s) to PennDOT. However, 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 District 6 -0, your name could appear on routine invoices submitted to PennDOT as to those particular pre - existing contracts if required by the regulations of PennDOT. The foregoing is limited to the submission of billing hours. Section 1103(g) of the Ethics Act would still prohibit you from engaging in conduct falling within the ambit of prohibited representation before PennDOT as set forth above. Section 1103(g) would not prohibit your name from appearing on invoices submitted to the Turnpike Commission or other state, federal, or local agencies. However, to the extent that the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT as to such invoices, such as, for example, through the prohibited inclusion of your name on invoice(s) that you know or reasonably expect will be submitted to PennDOT. Turning to your sixth, seventh, and eighth specific inquiries, you are advised that Section 1103(g) of the Ethics Act would prohibit you from: (1) assisting in the preparation of documents or designs for your new employer on future or existing agreements with PennDOT's Central Office or any PennDOT District (including District 6 -0), the Turnpike Commission, or any other state or federal agency; or (2) assisting in the preparation of any proposals for your new employer on advertisements for proposals with any such aforesaid entities, unless you would be able to do so without engaging in prohibited representation before PennDOT. Section 1103(g) of the Ethics Act would prohibit you from including your name on any proposal(s) for your new employer on advertisements for proposals with any unit of PennDOT, including but not limited to the Districts and the Central Office, as such activity(ies) would necessarily involve prohibited representation of your new employer Warmer, 09 -503 January 21, 2009 Page 6 before your former governmental body. Section 1103(g) would not prohibit you from listing your name on proposal(s) for your new employer on advertisements for proposals with the Turnpike Commission or other state, federal, or local agencies. However, where the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT. As to your ninth specific inquiry, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from making general informational inquiries to PennDOT's Central Office or any PennDOT District, including District 6 -0, provided that: (1) the information you would request would be available to the general public; and (2) such communications would not include prohibited representation as delineated above. In response to your tenth specific inquiry, you are advised that Section 1103(g) of the Ethics Act would prohibit you from working under the direction of a PennDOT employee as a consultant in a PennDOT District Office (regardless of the nature of the duties performed) and having your name appear on invoices as a consultant in the aforesaid capacity, as such activity(ies) would necessarily involve prohibited representation before your former governmental body. 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. 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 Portfolio Manager for the Pennsylvania Department of Transportation ( "PennDOT "), with a job title of Senior Civil Engineer Manager, 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. Upon termination of your employment 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 6 -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 your employment with PennDOT. The restrictions as to representation outlined above must be followed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 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. Warmer, 09 -503 January 21, 2009 Page 7 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