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HomeMy WebLinkAbout10-566 Pavlick ADVICE OF COUNSEL April 7, 2010 Drew Pavlick 531 Alison Drive, Apt. 12 Hummelstown, PA 17036 10-566 Dear Mr. Pavlick: This responds to your undated letters received February 3, 2010, and February 19, 2010, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, in your former capacity as an Engineering Intern – Civil with 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, 51 Pa. Code § 11.1 et seq., such that the restrictions of Section 1103(g) of the Ethics Act would now be applicable to you. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You were employed as an intern with PennDOT on a part-time basis from April 2008 through December 2009. From approximately October 2008 through the end of your internship in December 2009, you were employed as an Engineering Intern – Civil. You state that your responsibilities included clerical work, computer programming, and legal contract reviews. You state that you never acted in a decision making capacity, and that you only acted on direct orders of your supervisor or his peers. You further state that you were never directly involved with any decisions to provide or decline work to any outside entity. You have submitted a copy of the job classification specifications for the position of Engineering Intern – Civil (job code 11100), which document is incorporated herein by reference. Per the job classification specifications under job code 11100, an Engineering Intern – Civil performs technical engineering work under a structured intern program in the engineering program area of a state agency. The specific duties and authority of an Engineering Intern – Civil include, inter alia: ? Assisting journey level engineers in the completion of structured project assignments through the application of engineering methods and concepts learned in the classroom; Pavlick, 10-566 April 7, 2010 Page 2 ? Assisting journey level engineers in conducting field surveys, investigations, and inspections; ? Assisting in the preparation or review of plans for new structures or the renovation of existing structures; ? Assisting in the gathering of field research data; ? Assisting in the preparation of engineering reports; ? Performing or assisting in the review of mathematical calculations; ? Preparing graphs and charts used to illustrate data; and ? Assisting in the review of permit applications. Job Classification Specifications, at 2. You state that based upon your experience in your internship, you were offered a position with an engineering firm (“the Firm”) that does PennDOT-contracted work. You were told that in order for your name to appear on any proposals submitted to PennDOT by the Firm, you would need a ruling from the Pennsylvania State Ethics Commission stating that such activity(ies) would be permissible. You seek guidance as to whether, in your former capacity as an Engineering Intern – Civil with PennDOT, you would be considered a “public employee” as that term is 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, and if so, whether you could be granted an exemption/waiver of such restrictions. 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 responding to your inquiry, the threshold question to be addressed is whether, in your former capacity as an Engineering Intern – Civil 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 Pavlick, 10-566 April 7, 2010 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. (I) 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. Pavlick, 10-566 April 7, 2010 Page 4 (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. 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, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 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 an Engineering Intern – Civil with PennDOT, you would be Pavlick, 10-566 April 7, 2010 Page 5 considered a “public employee” subject to the Ethics Act. Cf., Walkowiak, Advice 08-539; Ketter, Advice 07-552. In your capacity as an Engineering Intern – Civil, you had the ability to take or recommend official action of a nonministerial nature with respect to subparagraphs (4) and (5) within the definition of “public employee” as set forth in the Ethics Act, 65 Pa.C.S. 1102. Specifically, you have factually submitted that your responsibilities included legal contract reviews. Additionally, per the job classification specifications, you had the authority to assist journey level engineers in conducting field surveys, investigations, and inspections and to assist in the preparation or review of plans for new structures or the renovation of existing structures. The aforesaid duties/authority would be sufficient to establish status as a public employee subject to the Ethics Act. Authority to assist in the review of permit applications would provide additional support for the conclusion that as an Engineering Intern – Civil with PennDOT, you were a public employee subject to the Ethics Act. Consequently, upon termination of 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. "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 Pavlick, 10-566 April 7, 2010 Page 6 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 public 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 are deemed to have been associated upon termination of public service is PennDOT in its entirety. 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. You are advised that the restrictions and prohibitions of Section 1103(g) of the Ethics Act are legislatively mandated, and the State Ethics Commission has no Pavlick, 10-566 April 7, 2010 Page 7 discretion to grant an exemption or waiver, even in a situation involving averred hardship: Nevertheless, this Commission is duty-bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section [1103(g)] restrictions to apply to all former public officials/public employees. There is no mention in the statute of any “variances” or “exceptions.” Obviously, the facts in any given case may be more or less compelling than in others, but the law must be applied fairly and uniformly. Ziegler, Opinion 98-001, at 6. See also, Long, Opinion 97-010. 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 or employment 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: In your former capacity as an Engineering Intern – Civil 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, 51 Pa. Code § 11.1 et seq. Upon termination of 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. For one 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. 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. Pavlick, 10-566 April 7, 2010 Page 8 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