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HomeMy WebLinkAbout15-532 Wert ADVICE OF COUNSEL May 18, 2015 Barry L. Wert, P.E., P.L.S. Metz Engineers 410 Derstine Avenue P.O. Box 647 Lansdale, PA 19446-0608 15-532 Dear Mr. Wert: This responds to your letter dated March 21, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). Issue: Whether, following termination of employment with and part ownership of a corporation named “Herbert H. Metz, Inc.,” which serves as the appointed Engineer for Franconia Township, the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would permit you to become an appointed alternate engineer or MS4 Consultant for Franconia Township separate from Herbert H. Metz, Inc. Facts: You request an advisory from the Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently a practicing civil engineer. You own fifty percent of the stock in a corporation named “Herbert H. Metz, Inc.” (the “Corporation”), which offers professional engineering and land surveying services in Pennsylvania and New Jersey. The Corporation provides municipal engineering services and serves as the appointed Engineer for Franconia Township (“Township”), located in Montgomery County, Pennsylvania. You state that you have developed an expertise in the regulatory environment for storm water discharges and that you currently serve on the Township’s MS4 Committee, which addresses the Township’s obligations and oversees the municipal permit planning for technical implementation of improvements for compliance. You state that you previously served as the appointed Township Engineer pursuant to the Second Class Township Code and that a coworker in the Corporation now holds such appointed position. You further state that your role is now limited to consulting as the MS4 Engineer for the Township. You are currently negotiating the sale of your stock in the Corporation, and you will in the near future cease to be an owner and employee of the Corporation. Based upon the above submitted facts, you ask whether it would be a violation of the post-employment restrictions of Section 1103(g) of the Ethics Act if you would Wert, 15-532 May 18, 2015 Page 2 become an appointed alternate engineer or MS4 Consultant for the Township separate from the Corporation. 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. If the activity in question has already occurred, the Commission may not issue an opinion/advice. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. The submitted facts do not indicate when you ceased serving as the Township Engineer. Additionally, the submitted facts are insufficient to enable a conclusive determination as to whether, in either of your current capacities as the MS4 Engineer for the Township or Member of the Township’s MS4 Committee, you would be considered a “public official” as that term is defined by the Ethics Act. See, 65 Pa.C.S. § 1102. Therefore, this Advice must be limited to providing the following general guidance. If, as the MS4 Engineer for the Township and/or Member of the Township’s MS4 Committee, you would be considered a “public official” as that term is defined by the Ethics Act, 65 Pa.C.S. § 1102, then upon termination of service in such position(s), you would become a “former public official” subject to Section 1103(g) of the Ethics Act, and the restrictions of Section 1103(g) would apply to you for one year or until such earlier time as you would resume the status of a public official/public employee of the Township. If, as the MS4 Engineer for the Township and/or Member of the Township’s MS4 Committee, you would not be considered a “public official” as that term is defined by the Ethics Act, 65 Pa.C.S. § 1102, then the restrictions of Section 1103(g) of the Ethics Act would apply to you for one year following termination of your service as the appointed Township Engineer (see, Goddard, Opinion 07-019) or until such earlier time as you would resume the status of a public official/public employee of the Township. Section 1103(g) restricts 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). Wert, 15-532 May 18, 2015 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 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. Generally, a former “public official” or former “public employee” may not contract with his former governmental body during the first year following termination of public service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Shaub, Order 1242; Claycomb, Opinion 14-004; Schrempf, Opinion 13-004; Confidential Opinion, 97-008; Confidential Opinion, 93-005. However, Section 1103(g) of the Ethics Act does not prohibit the appointment/rehiring of a former public official/public employee to a public office or position of public employment with the former governmental body. Confidential Opinion, 93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 and 97-010-R; McGlathery, Opinion 00-004. 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, Wert, 15-532 May 18, 2015 Page 4 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 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 service as a public official/public employee of the Township would be the Township, such that, when Section 1103(g) of the Ethics Act would be applicable to you, it would restrict “representation” of a “person” before the Township. You are advised that when Section 1103(g) of the Ethics Act would be applicable to you, it would prohibit you from contracting to provide services for the Township outside the scope of a public office or position of public employment with the Township. Cf., Shaub, supra; Claycomb, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. However, Section 1103(g) would not prohibit you from accepting a position as an alternate engineer or MS4 Consultant for the Township subject to the condition that such position would be a true public office or position of employment with the Township. Cf., Confidential Opinion, 93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 and 97-010-R; McGlathery, supra. 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 Wert, 15-532 May 18, 2015 Page 5 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: Based upon the submitted facts that: (1) you are currently a practicing civil engineer; (2) you own fifty percent of the stock in a corporation named “Herbert H. Metz, Inc.” (the “Corporation”), which offers professional engineering and land surveying services in Pennsylvania and New Jersey; (3) the Corporation provides municipal engineering services and serves as the appointed Engineer for Franconia Township (“Township”), located in Montgomery County, Pennsylvania; (4) you have developed an expertise in the regulatory environment for storm water discharges, and you currently serve on the Township’s MS4 Committee, which addresses the Township’s obligations and oversees the municipal permit planning for technical implementation of improvements for compliance; (5) you previously served as the appointed Township Engineer pursuant to the Second Class Township Code, and a coworker in the Corporation now holds such appointed position; (6) your role is now limited to consulting as the MS4 Engineer for the Township; and (7) you are currently negotiating the sale of your stock in the Corporation, and you will in the near future cease to be an owner and employee of the Corporation, you are advised as follows. The submitted facts do not indicate when you ceased serving as the Township Engineer. Additionally, the submitted facts are insufficient to enable a conclusive determination as to whether, in either of your current capacities as the MS4 Engineer for the Township or Member of the Township’s MS4 Committee, you would be considered a “public official” as that term is defined by the Ethics Act Therefore, this Advice must be limited to providing the following general guidance. If, as the MS4 Engineer for the Township and/or Member of the Township’s MS4 Committee, you would be considered a “public official” as that term is defined by the Ethics Act, 65 Pa.C.S. § 1102, then upon termination of service in such position(s), you would become a “former public official” subject to Section 1103(g) of the Ethics Act, and the restrictions of Section 1103(g) would apply to you for one year or until such earlier time as you would resume the status of a public official/public employee of the Township. If, as the MS4 Engineer for the Township and/or Member of the Township’s MS4 Committee, you would not be considered a “public official” as that term is defined by the Ethics Act, 65 Pa.C.S. § 1102, then the restrictions of Section 1103(g) of the Ethics Act would apply to you for one year following termination of your service as the appointed Township Engineer or until such earlier time as you would resume the status of a public official/public employee of the Township. The governmental body with which you would be deemed to have been associated upon termination of service as a public official/public employee of the Township would be the Township, such that, when Section 1103(g) of the Ethics Act would be applicable to you, it would restrict “representation” of a “person” before the Township. When Section 1103(g) of the Ethics Act would be applicable to you, it would prohibit you from contracting to provide services for the Township outside the scope of a public office or position of public employment with the Township. However, Section 1103(g) would not prohibit you from accepting a position as an alternate engineer or MS4 Consultant for the Township subject to the condition that such position would be a true public office or position of employment with the Township. 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 Wert, 15-532 May 18, 2015 Page 6 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