HomeMy WebLinkAbout11-517 Kiselich
ADVICE OF COUNSEL
March 29, 2011
John C. Kiselich
th
210 South 4 Street
West Newton, PA 15089
11-517
Dear Mr. Kiselich:
This responds to your letter dated February 2, 2011, and your submission
received February 14, 2011, 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
Transportation Construction Inspector Supervisor 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.
Effective January 22, 2011, you retired from your employment as a
Transportation Construction Inspector Supervisor with PennDOT in Engineering District
12-0. You have submitted copies of your official PennDOT position description and the
job classification specifications for the position of Transportation Construction Inspector
Supervisor (job code 10630), both of which documents are incorporated herein by
reference.
You state that a contractor named “Beth’s Barricades” (“the Contractor”) has
requested that you provide services to it. You have submitted a document dated
January 28, 2011, authored by David Nury (“Mr. Nury”), Chief Estimator for the
Contractor. In the aforesaid document, Mr. Nury states that the Contractor wishes to
retain you to perform work as a consultant on an as-needed basis immediately after the
termination of your employment with PennDOT. Mr. Nury states that the Contractor
would like you to participate in performing the following activities for all PennDOT
Districts: (1) preparing Force Account and Cost Justification Forms for additional work
performed by the Contractor on PennDOT projects; (2) pursuing payment from
contractors on PennDOT projects; (3) auditing quantities within the ECMS for completed
and ongoing projects; and (4) providing general consulting for a better understanding
regarding communications with PennDOT. You state that in performing the aforesaid
activities, you would not have any direct contact with PennDOT.
Kiselich, 11-517
March 29, 2011
Page 2
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any restrictions upon you with regard to performing the
aforementioned activities for the Contractor.
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 the former capacity as a Transportation Construction Inspector Supervisor 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; Isenberg, Advice 07-579. 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 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.
Kiselich, 11-517
March 29, 2011
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 "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.
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
Kiselich, 11-517
March 29, 2011
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 employment with PennDOT is PennDOT in its entirety, including but
not limited to Engineering District 12-0. 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 a “person” before PennDOT.
You are advised that Section 1103(g) of the Ethics Act would not restrict you, as
a consultant to the Contractor, from: (1) preparing Force Account and Cost Justification
Forms for additional work performed by the Contractor on PennDOT projects; (2)
pursuing payment from contractors on PennDOT projects; (3) auditing quantities within
the ECMS for completed and ongoing projects; or (4) providing general consulting for a
better understanding regarding communications with PennDOT, subject to the condition
that in performing the aforesaid activity(ies), you would not engage in 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:
In the former capacity as a Transportation Construction Inspector
Supervisor 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 became a "former public employee" subject to Section 1103(g) of the
Ethics Act. The former governmental body is PennDOT in its entirety, including but not
limited to Engineering District 12-0. 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.
Kiselich, 11-517
March 29, 2011
Page 5
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