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HomeMy WebLinkAbout09-532 EdwardsDavid Edwards 123 Wishbone Drive Ford City, PA 16226 -4841 Dear Mr. Edwards: ADVICE OF COUNSEL March 30, 2009 09 -532 This responds to your letters dated January 30, 2009, and February 10, 2009, 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 impose any restrictions upon an annuitant who, following retirement from the Commonwealth of Pennsylvania, has provided services to the Pennsylvania Department of Transportation ( "PennDOT ") under the 95 -day annuitant program, working in the position of Senior Bridge and Structural Designer, when the annuitant ceased providing such services to PennDOT on December 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. From 2001 to 2007, you were employed as a Senior Bridge and Structural Designer with PennDOT in Engineering District 10 -0. You have submitted a copy of your official position description for your former position as a Senior Bridge and Structural Designer, which document is incorporated herein by reference. It is noted that the working title of your position was Bridge Maintenance Coordinator. A copy of the job classification specifications for the aforesaid position (job code 10800) has been obtained and is also incorporated herein by reference. On June 29, 2007, you retired from Commonwealth employment as a Bridge and Structural Design Supervisor with PennDOT in Engineering District 10 -0. 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)), working as a Senior Bridge and Structural Designer in the Design Unit of Engineering District 10 -0. Your period of service as an annuitant was from July 28, 2008, to December 23, 2008. You have submitted copies of the annuitant request description and an organization chart for the Design Unit of Engineering District 10 -0, which documents are incorporated herein by reference. You state that you recently have been contacted by several engineering consulting firms that are interested in hiring you as a construction inspector. Edwards, 09 -532 March 30, 2009 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would permit you to work as a consultant construction inspector on PennDOT projects bid out to contractors. 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 clear that when an individual who has retired from Commonwealth employment returns to Commonwealth service as an annuitant to perform services falling within the Ethics Act's definition of "public employee" (see, 65 Pa.C.S. § 1102), the individual becomes a "public employee" subject to the Ethics Act. See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004. Based upon the duties and authority set forth in the official position description and job classification specifications for the position of Senior Bridge and Structural Designer, the necessary conclusion is that when you commenced providing services to PennDOT as an annuitant in said position on July 28, 2008, you became 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; Graves, supra; McGlathery, supra. Consequently, when you ceased providing such annuitant services on December 23, 2008, 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. Edwards, 09 -532 March 30, 2009 Page 3 "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 /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 Edwards, 09 -532 March 30, 2009 Page 4 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, when you ceased providing services to PennDOT under the 95 -day program for annuitants on December 23, 2008, you 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) commenced. 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 Engineering District 10 -0. Therefore, until the expiration of a full one -year period following your December 23, 2008, termination of service as an annuitant with PennDOT, or until you would resume providing services to PennDOT under the 95 -day program 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 the representation of a "person" before PennDOT with promised or actual compensation as set forth above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised as follows. The Ethics Act would not prohibit you from accepting employment with a consulting firm. However, when Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from performing any job duties that would involve prohibited representation before PennDOT as outlined above. You are advised that when Section 1103(g) of the Ethics Act would be applicable, it would appear to be impossible, as a practical matter, for you to work as a consultant construction inspector on PennDOT projects bid out to contractor(s) without engaging in prohibited representation before 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 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: On July 28, 2008, when you commenced providing services to the Pennsylvania Department of Transportation ( "PennDOT" ) as an annuitant under the 95- day annuitant program, serving in the position of Senior Bridge and Structural Designer, you became a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. When you ceased providing such services on December 23, 2008, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. 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 Engineering District 10 -0. Until the expiration of a full one - year period following your December 23, 2008, termination of service as an annuitant with PennDOT, or until you would resume providing services to PennDOT under the 95- Edwards, 09 -532 March 30, 2009 Page 5 day program 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 the representation of a "person" before PennDOT with promised or actual compensation as set forth above. The restrictions as to representation outlined above must be followed. When Section 1103(g) of the Ethics Act would be applicable, it would appear to be impossible, as a practical matter, for you to work as a consultant construction inspector on PennDOT projects bid out to contractor(s) without engaging in prohibited representation before PennDOT. 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. 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