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HomeMy WebLinkAbout13-517 Gochenauer ADVICE OF COUNSEL April 4, 2013 Justin R. Gochenauer, P.E. 221 Faith Circle Carlisle, PA 17013 13-517 Dear Mr. Gochenauer: This responds to your letter of February 11, 2013, 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 – Transportation 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 – Transportation with PennDOT in the Highway Design Section of Engineering District 8-0 (“District 8-0”), in which capacity you serve as a Senior Project Manager. 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 – Transportation (job code 1115T) has been obtained and is also incorporated herein by reference. You state that you are considering leaving Commonwealth employment to accept either: (1) employment with an engineering consultant that completes work for PennDOT; or (2) an offer to manage an engineering office for a new Disadvantaged Business Enterprise Firm (the “DBE Firm”). The DBE Firm currently does not have any contracts with PennDOT. At least during the first year, the DBE Firm will be focusing on subcontracting with different prime consultants that complete work with PennDOT in multiple PennDOT Engineering Districts (“Districts”), including District 8-0. You state that you have worked for PennDOT only in District 8-0. You have never worked directly with the DBE Firm. You have worked with many prime consultants that may potentially include the DBE Firm on future contracts with PennDOT. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you during the first year following termination of your employment with PennDOT. You pose the following questions: Gochenauer, 13-517 April 4, 2013 Page 2 (1) Whether your name could appear on invoices for contracts not with the Highway Design Unit of District 8-0; (2) Whether you could conduct work as a sub-consultant on existing or new contracts with District 8-0, Districts other than District 8-0, or PennDOT’s Central Office; (3) Whether the DBE Firm would be restricted from conducting work as a sub- consultant on existing or new contracts with District 8-0, Districts other than District 8-0, or PennDOT’s Central office due to your role as office manager for the DBE Firm; (4) Whether you could market the DBE Firm to District 8-0, Districts other than District 8-0, or PennDOT’s Central Office; (5) Whether you could market the DBE Firm to other consultants doing work for District 8-0, Districts other than District 8-0, or PennDOT’s Central Office; (6) For purposes of applying the State Ethics Commission’s holding in Abrams/Webster, Opinion 95-011 (pertaining to invoices), what would be the “unit” where you work, and would such “unit” be specific to District 8-0 or include the same “unit” within other Districts; and (7) Whether you would be permitted to have your name appear on statements of interest submitted to District 8-0, Districts other than District 8-0, or PennDOT’s Central Office by the DBE Firm or any other prime consultant for contracts that would be advertised for engineering consultant contracts. 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 – Transportation 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; Palladino, Advice 10-569; Sesny, Advice 08-598. 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”: Gochenauer, 13-517 April 4, 2013 Page 3 § 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 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 official/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 Gochenauer, 13-517 April 4, 2013 Page 4 with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing contract does not involve the unit where a 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, supra. 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 your 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 a “person” before PennDOT. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first 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., Ebersole, Advice 10-621. During the one-year period of applicability of Section 1103(g) of the Ethics Act, as a general rule, your name could not be listed on invoices submitted to PennDOT by your new employer. However, if you would perform work for your new employer on PennDOT contracts that existed before you terminated your employment with PennDOT, and if such contracts would not involve the “unit” of PennDOT where you 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. The ability to include your name on invoices subject to the aforesaid conditions would not impact the applicability of Section 1103(g) of the Ethics Act as to other activities. With regard to your second 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 conducting work as a sub-consultant on existing or new Gochenauer, 13-517 April 4, 2013 Page 5 contracts your new employer would have with PennDOT’s Central Office or any District, including District 8-0, unless you would be able to do so without engaging in prohibited representation before PennDOT as set forth above. You have not established legal standing to submit your third question as to the conduct of the DBE Firm. However, you are generally advised that the restrictions of Section 1103(g) of the Ethics Act only apply to former public officials and former public employees. As to your fourth question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from marketing the DBE Firm to PennDOT’s Central Office or any District, including District 8-0, as such would necessarily involve prohibited representation before PennDOT. In response to your fifth question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from marketing the DBE Firm to other consultants doing work with PennDOT’s Central Office or any District, including District 8-0, subject to the condition that in so doing, you would not engage in any activity that would involve prohibited representation before PennDOT as delineated above. With regard to your seventh 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 permitting your name to appear on statements of interest submitted to PennDOT’s Central Office or any District, including District 8-0, by the DBE Firm or other prime consultants for contracts that are advertised for engineering consultant contracts, as such would necessarily involve prohibited representation 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 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 – Transportation 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. 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. The restrictions as to representation Gochenauer, 13-517 April 4, 2013 Page 6 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, 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