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HomeMy WebLinkAbout16-504 Anderson ADVICE OF COUNSEL February 8, 2016 David Anderson 34 Lynn Way Indiana, PA 15701 16-504 Dear Mr. Anderson: This responds to your letter dated December 8, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon employment of a Civil Engineer Supervisor following termination of employment with the Pennsylvania Department of Transportation (“PennDOT”). 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. On December 4, 2015, you separated from your employment as a Civil Engineer Supervisor with PennDOT in Engineering District 10-0. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. You recently began employment with a firm named “Quality Engineering Solutions, Inc.” (“QES”). You state that QES is a registered business partner that provides consultant design and construction inspection services to PennDOT and other Commonwealth agencies. You state that QES is a subcontractor to a firm named “TRC,” which has a contract with an entity named “Plenary Walsh Keystone Partners” (“PWKP”) to provide quality assurance services for the P3 Rapid Bridge Replacement Project. You further state that QES’ work is independent of the contractor work being performed by PWKP for the P3 Rapid Bridge Replacement Project. 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 Commonwealth employment. In particular, you pose the following questions: (1) Whether you would be permitted to work as an inspector for QES on the P3 Rapid Bridge Replacement Project; Anderson, 16-504 February 8, 2016 Page 2 (2) Whether you would be permitted to work on municipal projects that are funded through PennDOT’s ECMS; (3) Whether you would be permitted to attend group functions sponsored by PennDOT, such as the district construction inspection winter schools; (4) Whether you would be permitted to attend group functions sponsored by PennDOT and industry organizations, such as APC/PennDOT and ACEC/PennDOT; (5) Whether you would be permitted to attend PennDOT-sponsored training courses that are offered to PennDOT’s business partners; and (6) Whether you would be permitted to attend project-related meetings and marketing meetings in PennDOT districts along with other staff from QES. 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. In the former capacity as a Civil Engineer Supervisor 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. This conclusion is based upon the position description, which when reviewed on an objective basis, indicates 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 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). 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: Anderson, 16-504 February 8, 2016 Page 3 § 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 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 Anderson, 16-504 February 8, 2016 Page 4 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 are deemed to have been associated upon termination of your employment with PennDOT is PennDOT in its entirety, including but not limited to Engineering District 10-0. 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 second questions, 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: (1) working as an inspector for QES on the P3 Rapid Bridge Replacement Project; or (2) working on municipal projects that are funded through PennDOT’s ECMS, unless you would be able to do so without engaging in prohibited representation before PennDOT as set forth above. With regard to your third, fourth, and fifth questions, you are advised as follows. Section 1103(g) of the Ethics Act would prohibit you from attending events such as group functions sponsored by PennDOT, group functions sponsored by PennDOT and industry organizations, or PennDOT-sponsored training courses offered to PennDOT’s business partners unless you would be able to do so without engaging in prohibited representation before PennDOT. If staff of PennDOT would be in attendance at such an event, it would be difficult if not impossible, as a practical matter, for you to attend the event without running afoul of Section 1103(g). If your attendance at such an event would make known to PennDOT your work for QES, such would necessarily involve prohibited representation before PennDOT. In response to your sixth question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from attending project-related meeting(s) or marketing meeting(s) in PennDOT district(s) along with other staff from QES 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. Anderson, 16-504 February 8, 2016 Page 5 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: In the former capacity as a Civil Engineer Supervisor 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 became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety, including but not limited to Engineering District 10-0. 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 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