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HomeMy WebLinkAbout10-621 Ebersole ADVICE OF COUNSEL October 25, 2010 Ray E. Ebersole 640 Dellville Road Duncannon, PA 17020 10-621 Dear Mr. Ebersole: This responds to your letter dated September 20, 2010, 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.C.S. § 1101 et seq., would impose any restrictions upon employment of a Civil Engineer Manager – Bridges following termination of employment 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 Civil Engineer Manager – Bridges with PennDOT in the District Bridge Unit of Engineering District 8-0 (“District 8-0”). 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 Civil Engineer Manager – Bridges (job code 1115B) has been obtained and is also incorporated herein by reference. You state that in your position with PennDOT, you are the manager of the District Bridge Safety Inspection Program under the supervision of the District Bridge Engineer. Your job duties include, inter alia, determining the need for assistance from consulting engineering firms based on available staffing and workload and participating in the selection of consulting engineering firms for projects within District 8-0. You state that you plan to retire from PennDOT in February 2011. Following retirement, you might pursue employment with a consulting engineering firm (“the Firm”). You seek guidance as to whether the Ethics Act would impose any restrictions upon you if you would become employed with the Firm following your retirement from PennDOT. In particular, you pose the following questions: (1) Whether, for purposes of applying the State Ethics Commission’s holding in Abrams/Webster, Opinion 95-011 (pertaining to invoices), the “unit” where you work would be District 8-0 or PennDOT in its entirety; Ebersole, 10-621 October 25, 2010 Page 2 (2) Whether your name could appear on invoices submitted by the Firm to the Central Office Bridge Quality Assurance Division (“BQAD”) or to Engineering Districts other than District 8-0; (3) Whether you would be permitted to assist with presenting training through an existing contract the Firm would have with BQAD where PennDOT employees from District 8-0 would attend, or in the alternative would not attend, such training; (4) Whether you would be permitted to participate in contracts the Firm would have with PennDOT units other than District 8-0 as a QA/QC reviewer in the Firm’s office; (5) Whether you would be permitted to participate in preexisting contracts the Firm would have with PennDOT unit(s) other than District 8-0 as a field inspector or inspection team leader where your name would appear on the report(s) submitted to such PennDOT unit(s) as required by current PennDOT policy; and (6) Whether your name could appear in inspection reports of bridges owned by local government agencies where such reports would be submitted to PennDOT units other than District 8-0. 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 Civil Engineer Manager – 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; Chidiac, Advice 10-571. 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 Ebersole, 10-621 October 25, 2010 Page 3 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. 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 "represent" 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. Ebersole, 10-621 October 25, 2010 Page 4 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 would be deemed to have been associated upon termination of employment with PennDOT would be 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. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall be addressed. With regard to your first, second, fifth, and sixth questions, you are advised as follows. For purposes of applying the State Ethics Commission’s holding in Abrams/Webster, supra, the “unit” where you work would be District 8-0. Cf., Morian, Advice 10-596. During the one-year period of applicability of Section 1103(g) of the Ethics Act, if you would perform work for the Firm 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 8-0, your name could appear on routine invoices submitted to PennDOT as to those particular pre- existing contracts if required by the regulations of PennDOT. See, Abrams/Webster, supra. However, the foregoing is limited to the submission of billing hours. Section 1103(g) of the Ethics Act would still prohibit you from being identified on other documents submitted to PennDOT, including but not limited to bridge inspection reports or other reports. If PennDOT policy would require that your name appear on such report(s), it would be impossible as a practical matter for you to participate as a field inspector or inspection team leader for the Firm on PennDOT contracts without running afoul of Section 1103(g). In response to your third question, you are advised that during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from assisting with presenting any training(s) on behalf of the Firm where staff of PennDOT would be in attendance--regardless of whether such staff would or would not be employed in District 8-0--as such would necessarily involve prohibited representation before PennDOT. Cf., MacKinnon, Advice 07-580. Ebersole, 10-621 October 25, 2010 Page 5 As to your fourth question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from participating in contracts the Firm would have with PennDOT units other than District 8-0 as a QA/QC reviewer in the Firm’s office subject to the condition that in so doing, you would not engage in any activity that would involve prohibited representation before PennDOT during the first year following termination of your employment with 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 or employment, or confidential information received by being in the public position, 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; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. Conclusion: As a Civil Engineer Manager – Bridges 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 your employment with PennDOT, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be PennDOT in its entirety, including but not limited to Engineering District 8-0. Section 1103(g) of the Ethics Act would prohibit 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, Ebersole, 10-621 October 25, 2010 Page 6 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