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HomeMy WebLinkAbout15-004 Telek OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Kathryn Streeter Lewis Maria Feeley Melanie DePalma DATE DECIDED: 10/7/15 DATE MAILED: 10/16/15 15-004 Marcia L. DePaula, Esquire Steptoe & Johnson PLLC 11 Grandview Circle, Suite 200 Canonsburg, PA 15317 Dear Ms. DePaula: This Opinion is issued in response to the appeal of Advice of Counsel 14-543, which was issued on September 24, 2014. I.ISSUE: Whether Advice of Counsel 14-543 correctly interpreted the meaning of the term “represent” as set forth in the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1102, in the context of restrictions that would be placed upon a former public employee of the Pennsylvania Turnpike Commission (“Turnpike Commission”) pursuant to Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). II.FACTUAL BASIS FOR DETERMINATION: As counsel for William F. Telek (“Mr. Telek”), you have appealed Telek, Advice of Counsel 14-543, which was issued to Mr. Telek on September 24, 2014. At the time of Mr. Telek’s initial inquiry, he was employed as a Senior Construction Inspector with the Turnpike Commission. Mr. Telek was considering retiring from the Turnpike Commission and working as a private consultant. Mr. Telek asked whether, in his then-current position as a Senior Construction Inspector with the Turnpike Commission, he would be subject to the Ethics Act, and if so, whether the Ethics Act would impose any restrictions upon him with regard to working as a private consultant on a project on the Pennsylvania Turnpike following his retirement from the Turnpike Commission. DePaula/Telek, 15-004 October 16, 2015 Page 2 Advice of Counsel 14-543 determined that in his capacity as a Senior Construction Inspector with the Turnpike Commission, Mr. Telek would be a “public employee” subject to the Ethics Act and the Regulations of this Commission, 51 Pa. Code § 11.1 et seq. The Advice of Counsel determined that upon termination of his employment with the Turnpike Commission, Mr. Telek would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The Advice further determined that Mr. Telek’s former governmental body would be the Turnpike Commission in its entirety. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act as deemed applicable to Mr. Telek. The Advice concluded, in pertinent part, that during the first year following termination of Mr. Telek’s employment with the Turnpike Commission, Section 1103(g) of the Ethics Act would prohibit Mr. Telek from working as a private consultant on Pennsylvania Turnpike project(s) to the extent such would involve prohibited representation before the Turnpike Commission. By letter dated October 20, 2014, you appealed Advice of Counsel 14-543. This matter was subsequently continued at your request for various reasons, including a change in Mr. Telek’s position of employment with the Turnpike Commission. Currently, Mr. Telek is employed as a Construction Manager with the Turnpike Commission, and there is no longer any issue before this Commission as to whether Mr. Telek, in his capacity as an employee of the Turnpike Commission, is a public employee subject to the Ethics Act. The sole issue raised on appeal is whether the Ethics Act’s definition of the term “represent” would encompass the inclusion of Mr. Telek’s name/signature on invoices submitted by his new employer to the Turnpike Commission following his retirement/termination of employment with the Turnpike Commission. By letter dated August 31, 2015, you were notified that your appeal would be considered at this Commission’s public meeting on October 7, 2015. On September 23, 2015, this Commission received your Brief. In your Brief, you argued that the Ethics Act’s definition of the term “represent” does not encompass the inclusion of the name/signature of a former public employee on invoices submitted by his new employer to the former governmental body because such activity is not specifically included among the examples of forms of “representation” set forth within the definition. You asserted that the inclusion of a former public employee’s name/signature on an invoice submitted by his new employer to the former governmental body would not constitute “representing” a “person” before the former governmental body. You contended that during the first year following termination of Mr. Telek’s employment with the Turnpike Commission, he should be permitted to include his name/signature on invoices submitted to the Turnpike Commission by his prospective private employer. III.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, this 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 considering the merits of your appeal, we note that you do not dispute the Advice of Counsel’s determination that upon termination of employment with the Turnpike Commission, Mr. Telek would become a “former public employee” subject to Section DePaula/Telek, 15-004 October 16, 2015 Page 3 1103(g) of the Ethics Act. You do not contest that Mr. Telek’s former governmental body would be the Turnpike Commission in its entirety. Section 1103(g) of the Ethics Act provides as follows: § 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 defined to include corporations and individuals; we have previously determined that it includes the former public official/public employee himself. Confidential Opinion, 93-005. The term “represent” is broadly defined to prohibit acting on behalf of any person in any activity. In Shay, Opinion 91-012, we addressed the identical issue now before us. In Shay, we concluded that the inclusion of the name of a former public employee on invoices submitted by his new employer to the former governmental body would fit within the Ethics Act’s definition of the term “represent.” We noted that the definition of the term “represent” encompasses acting on behalf of any person in “any activity” and not merely those activities specifically included within the definition to exemplify its meaning. We further noted that the inclusion of the public employee’s name on invoices submitted by his new employer to his former governmental body would be with his knowledge and consent and would constitute action on behalf of his new employer. Cf., Stephens v. State Ethics Commission, 571 A.2d 1120 (Pa. Cmwlth. 1990). We held that Section 1103(g) of the Ethics Act would prohibit the inclusion of the name of the former public employee on DePaula/Telek, 15-004 October 16, 2015 Page 4 invoices submitted by his new employer to the former governmental body, even where the invoices would pertain to a contract that existed prior to termination of service with such governmental body. In Abrams/Webster, Opinion 95-011, we held that if 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. In the instant matter, it is clear that the Ethics Act’s definition of the term “represent” would encompass the inclusion of Mr. Telek’s name (and therefore his signature) on invoices submitted by his new employer to the Turnpike Commission. Cf., Shay, supra. There is no doubt that the inclusion of Mr. Telek’s name on invoices submitted by his new employer to the Turnpike Commission would be with his knowledge and consent and would constitute acting on behalf of his new employer. During the first year following termination of his employment with the Turnpike Commission, Section 1103(g) of the Ethics Act would prohibit the inclusion of Mr. Telek’s name on invoices submitted by his new employer to the Turnpike Commission except to the narrow and limited extent permitted by our holding in Abrams/Webster, supra. We adopt and incorporate herein by reference the recitation of the Section 1103(g) restrictions set forth in Advice of Counsel 14-543. Based upon the above analysis, we deny the appeal and affirm Telek, Advice of Counsel 14-543. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV.CONCLUSION: William F. Telek (“Mr. Telek”), in his capacity as an employee of the Pennsylvania Turnpike Commission (“Turnpike Commission”), is 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 his employment with the Turnpike Commission, Mr. Telek 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. During the first year following termination of his employment with the Turnpike Commission, Section 1103(g) of the Ethics Act would apply to Mr. Telek and specifically would prohibit the inclusion of Mr. Telek’s name on invoices submitted by his new employer to the Turnpike Commission except to the narrow and limited extent permitted by Abrams/Webster, Opinion 95-011. The appeal is denied. Advice of Counsel 14-543 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, Nicholas A. Colafella DePaula/Telek, 15-004 October 16, 2015 Page 5 Chair