HomeMy WebLinkAbout09-535 StaffordRoland Dale Stafford
1 Shoemaker Lane
Mechanicsburg, PA 17050
Dear Mr. Stafford:
ADVICE OF COUNSEL
April 3, 2009
09 -535
This responds to your letter dated February 9, 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 employment of a
probationary Transportation Construction Inspector 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.
On March 26, 2008, you began employment as a probationary Transportation
Construction Inspector with PennDOT in Engineering District 8 -0 ( "District 8 -0 "). You
state that on January 21, 2009, you were notified by management that you would not
obtain permanent employment status.
You have submitted a copy of your official PennDOT position description, which
document is incorporated herein by reference. A copy of the job classification
specifications for the position of Transportation Construction Inspector (job code 10620)
has been obtained and is also incorporated herein by reference.
You state that as a probationary employee, you were responsible for visual
observation and documentation of construction IAW plans, specifications, contracts, and
directions of supervisors and managers. You express your view that such work
involved ministerial actions with direct supervision and no independent judgment.
You state that you received a job offer as a consultant but this offer was
rescinded February 8, 2009, due to concerns pertaining to the post - employment
restrictions of the Ethics Act.
Stafford, 09 -535
April 3, 2009
Page 2
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you following termination of your employment with PennDOT.
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 probationary Transportation Construction Inspector 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; Herb,
Advice 02 -542; Blazer, Advice 04 -570; Munley, Advice 07 -593; cf., Jones, Advice 97-
584. 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 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.
Stafford, 09 -535
April 3, 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
Stafford, 09 -535
April 3, 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.
The governmental body with which you are deemed to have been associated
upon termination of your employment with PennDOT is PennDOT in its entirety,
including but not limited to District 8 -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.
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 probationary Transportation Construction Inspector for the
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. Upon
termination of your employment with PennDOT, you became a "former public
employee" subject to the restrictions of Section 1103(g) of the Ethics Act. The former
governmental body is PennDOT in its entirety, including but not limited to Engineering
District 8 -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.
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,
Stafford, 09 -535
April 3, 2009
Page 5
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