HomeMy WebLinkAbout14-543 Telek
ADVICE OF COUNSEL
September 24, 2014
William F. Telek
1801 Summit Drive
Windber, PA 15963
14-543
Dear Mr. Telek:
This responds to your letters dated July 20, 2014, and August 3, 2014, 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 Senior
Construction Inspector following termination of employment with the Pennsylvania
Turnpike Commission (“Turnpike Commission”).
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 Senior Construction Inspector with the Turnpike
Commission. You have submitted a copy of a job description for the position of Senior
Construction Inspector with the Turnpike Commission, which document is incorporated
herein by reference.
Per the submitted job description, you act as the inspector in charge of small
highway construction or bridge construction projects. You supervise and participate in
the inspection of construction materials and workmanship to ensure that the quality of
performance conforms to standards and specifications. You interpret contract
requirements to subordinates, contractors, and construction workers. You maintain
complete records/documentation of work performed to support the final cost
determination. You enforce federal, state, and local laws regulating construction
procedures, safety practices, and working conditions. You instruct subordinates in the
techniques of field material sampling and testing. Job Description, at 1.
You state that as a Senior Construction Inspector with the Turnpike
Commission, you are not considered a supervisor. The submitted job description
provides that supervision is exercised over a small group of technical assistants.
You state that your duties include recording and documenting contractors’ work
for payment by the Turnpike Commission. You state that on small mill and pave
operations, you act as the inspector in charge and obtain the engineer’s approval for
any contract changes. You further state that the Engineer Project Manager is
Telek, 14-543
September 24, 2014
Page 2
responsible for taking or recommending any official action. You express your view that
any inspecting performed by you is ministerial in nature.
You have decided to retire from the Turnpike Commission, and you are
considering working as a private consultant.
You state that when you decided to retire from the Turnpike Commission, you
told your supervisor that you would be working as a consultant inspector on one of the
projects on the Turnpike. You state, “Believing that he was assisting me with the
transition, my supervisor moved me to this same project before my retirement.” July 20,
2014, advisory request letter, at 2.
Based upon the above submitted facts, you ask whether, in your current position
as a Senior Construction Inspector with the Turnpike Commission, you would be subject
to the Ethics Act, and if so, whether the Ethics Act would impose any restrictions upon
you with regard to working as a private consultant on a project on the Pennsylvania
Turnpike following your retirement from the Turnpike Commission.
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 further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to conduct that has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
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
(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.
Telek, 14-543
September 24, 2014
Page 3
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.
(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.
Telek, 14-543
September 24, 2014
Page 4
(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.
The following terms are defined in the Ethics Act as follows:
§ 1102. Definitions
"Ministerial action."
An action that a person performs in a
prescribed manner in obedience to the mandate of legal
authority, without regard to or the exercise of the person’s
own judgment as to the desirability of the action being taken.
"Nonministerial actions."
An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
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. Cmwlth. 1984); Eiben, Opinion
04-002;Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court
of Pennsylvania has specifically considered and approved this 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, Quaglia v. State Ethics
Telek, 14-543
September 24, 2014
Page 5
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS
8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (Pa.
2010); Phillips, supra.
The first portion of the statutory definition of “public employee” includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1(“public employee”)(ii), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision-makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-
005.
Based upon the above judicial directives, the provisions of the Ethics Act, the State
Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light
of your duties and responsibilities, the necessary conclusion is that as a Senior
Construction Inspector for the Turnpike Commission, you are a "public employee” subject
to the Ethics Act.
It is clear that in your capacity as a Senior Construction Inspector with the
Turnpike Commission, you have 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. Your
duties/authority with regard to: (1) supervising and participating in the inspection of
construction materials and workmanship to ensure that the quality of performance
conforms to standards and specifications; (2) interpreting contract requirements to
subordinates, contractors, and construction workers; (3) maintaining complete
records/documentation of work performed to support the final cost determination; and
(4) enforcing federal, state, and local laws regulating construction procedures, safety
practices, and working conditions would be sufficient to establish your status as a public
employee. The foregoing duties/authority would also meet the criteria for determining
your status as a public employee under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code § 11.1, “public employee,” subparagraphs (i) and (ii).
Therefore, you are a “public employee” subject to the Ethics Act.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.--
No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
Telek, 14-543
September 24, 2014
Page 6
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment."
The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public office/employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. The use of
authority of office is not limited merely to voting, but extends to any use of authority of
office including, but not limited to, discussing, conferring with others, and lobbying for a
particular result. Juliante, Order 809.
The Pennsylvania Supreme Court has held that in order to violate Section
1103(a) of the Ethics Act, a public official/public employee “must be consciously aware
of a private pecuniary benefit for himself, his family, or his business, and then must take
action in the form of one or more specific steps to attain that benefit.” Kistler v. State
Ethics Commission, 610 Pa. 516, 528, 22 A.3d 223, 231 (2011). Based upon Kistler,
the existence of a violation of Section 1103(a) would depend upon the circumstances in
a given case. Raphael, Opinion 13-003.
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 anything of monetary value 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 questions presented.
Upon termination of your employment with the Turnpike Commission, 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
governmental body with which he has been associated for
one year after he leaves that body.
Telek, 14-543
September 24, 2014
Page 7
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 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, 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
Telek, 14-543
September 24, 2014
Page 8
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 the Turnpike Commission would
be the Turnpike Commission in its entirety. Therefore, for the first year following
termination of your employment with the Turnpike Commission, Section 1103(g) of the
Ethics Act would apply and restrict “representation” of a “person” before the Turnpike
Commission.
You are advised that during the first year following termination of your
employment with the Turnpike Commission, Section 1103(g) of the Ethics Act would
prohibit you from working as a private consultant on Pennsylvania Turnpike project(s) to
the extent such would involve prohibited representation before the Turnpike
Commission.
With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a
ruling as to past conduct. You are generally advised that the elements of a violation of
Section 1103(a) of the Ethics Act would not be established as a result of your
prospectively entering into a business/employment relationship with an entity where
you: (1) did not use the authority of your public position in matter(s) pertaining to such
entity when you had an actual or reasonable expectation that you would enter into a
business/employment arrangement with such entity or would otherwise receive a private
pecuniary benefit relating to such entity; and (2) did not otherwise use the authority of
your public position or confidential information received as a result of being in your
public position in furtherance of securing a business/employment arrangement with
such entity or other private pecuniary benefit relating to such entity. Cf., Desmond,
Opinion 08-004.
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.
Conclusion:
As a Senior Construction Inspector with the Pennsylvania Turnpike
Commission (“Turnpike Commission”), 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 the Turnpike Commission, you would
become a “former public employee” subject to Section 1103(g) of the Ethics Act. The
former governmental body would be the Turnpike Commission in its entirety. For the
first year following termination of your employment with the Turnpike Commission,
Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person”
Telek, 14-543
September 24, 2014
Page 9
before the Turnpike Commission. The restrictions as to representation outlined above
must be followed.
During the first year following termination of your employment with the Turnpike
Commission, Section 1103(g) of the Ethics Act would prohibit you from working as a
private consultant on Pennsylvania Turnpike project(s) to the extent such would involve
prohibited representation before the Turnpike Commission.
With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a
ruling as to past conduct. You are generally advised that the elements of a violation of
Section 1103(a) of the Ethics Act would not be established as a result of your
prospectively entering into a business/employment relationship with an entity where
you: (1) did not use the authority of your public position in matter(s) pertaining to such
entity when you had an actual or reasonable expectation that you would enter into a
business/employment arrangement with such entity or would otherwise receive a private
pecuniary benefit relating to such entity; and (2) did not otherwise use the authority of
your public position or confidential information received as a result of being in your
public position in furtherance of securing a business/employment arrangement with
such entity or other private pecuniary benefit relating to such entity.
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