Loading...
HomeMy WebLinkAbout12-506 Templeton ADVICE OF COUNSEL February 2, 2012 Thomas M. Templeton, P.E. 51 Manada Creek Circle Carlisle, PA 17013 12-506 Dear Mr. Templeton: This responds to your letter dated December 23, 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 an individual who, following retirement from the Commonwealth of Pennsylvania, has provided services to the Pennsylvania Department of Transportation (“PennDOT”) as an annuitant under the 95- day “return to state service” provision at 71 Pa.C.S. § 5706(A.1), with regard to seeking employment with a consulting engineering firm following termination of the individual’s service as an annuitant with 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 December 31, 2010, you retired from your employment as a Negotiation Engineer with the Consultant Agreement Section of the Bureau of Design within PennDOT. You have submitted a copy of your official PennDOT position description, which document is incorporated herein by reference. It is noted that said position description lists your job title as Civil Engineer Consultant - Transportation. You have further submitted a copy of the job classification specifications for the position of Civil Engineer Consultant - Transportation (job code 1116T), which document is also incorporated herein by reference. You state that the duties of your pre-retirement position with PennDOT included the negotiation of engineering price proposals and the preparation of engineering agreements, in the last several years primarily for Engineering Districts (“Districts”) 1-0, 6-0, and 11-0. You state that you had minor contact with several other Districts from time to time. Following your retirement from the Commonwealth, you returned to work with PennDOT in 2011 as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”). You state that you returned to work in a capacity similar to your pre-retirement position and that your duties changed to the degree that instead of being the person in charge for assisting the Districts, you were an assistant to the full-time Negotiation Engineers in charge of negotiating and preparing agreements for the Districts. You further state that your work Templeton, 12-506 February 2, 2012 Page 2 as an annuitant was restricted to association with Districts 6-0 and 11-0. You state that the following duties/authority set forth in the job classification specifications under job code 1116T were applicable to your position as an annuitant: “In a transportation engineering environment, performs duties associated with the preparation, negotiation, and execution of consultant engineering agreements and the review and payment of invoices to consultants for an assigned region of Engineering Districts from the DOT Central Office.” Job Classification Specifications, job code 1116T, at 2. You have applied for an annuitant position for 2012. You state that if you would not obtain such a position, you would prefer to continue to use your skills as an engineer in the transportation field in whatever employment you could obtain. You express your view that engaging in such employment would not conflict with the ethics restrictions of the Commonwealth since your work as an annuitant in 2011 significantly reduced your contact with PennDOT personnel. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to seeking employment with a consulting engineering firm, where such employment would include working on PennDOT projects and working with individuals currently working for 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. 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 submitted facts, the necessary conclusion is that when you commenced providing services to PennDOT as an annuitant in 2011, 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, 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). Templeton, 12-506 February 2, 2012 Page 3 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. 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 Templeton, 12-506 February 2, 2012 Page 4 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. Under the facts that you have submitted, when you ceased providing services to PennDOT under the 95-day Annuitant Program in 2011, 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 Districts 6-0 and 11-0. Therefore, until the expiration of a full one-year period following termination of your most recent service as an annuitant with PennDOT, or until you would resume providing services to PennDOT under the 95-day Annuitant 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 engineering firm. However, when Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve prohibited representation before PennDOT as outlined above. The submitted facts do not detail the duties of your proposed employment position(s). 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 with individuals currently working for PennDOT without running afoul of Section 1103(g). 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. Templeton, 12-506 February 2, 2012 Page 5 Conclusion: In 2011, when you commenced providing services to the Pennsylvania Department of Transportation (“PennDOT”) as an annuitant under the 95- day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”), you became 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. When you ceased providing such annuitant services, 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 Districts 6-0 and 11-0. Until the expiration of a full one-year period following termination of your most recent service as an annuitant with PennDOT, or until you would resume providing services to PennDOT under the 95- day Annuitant 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 with individuals currently working for PennDOT without running afoul of Section 1103(g). 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, 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