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HomeMy WebLinkAbout16-513 McGee ADVICE OF COUNSEL February 22, 2016 James R. McGee 323 Village Walk Drive Macungie, PA 18062-1136 16-513 Dear Mr. McGee: This responds to your letter dated January 5, 2016, 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 an Assistant Highway District Engineer 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. At the time that you submitted your inquiry, you were employed as an Assistant Highway District Engineer with PennDOT in Engineering District 5-0 (“District 5-0”), in which capacity you served as an Assistant District Executive for Design. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Assistant Highway District Engineer (job code 11710) has been obtained and is also incorporated herein by reference. You stated that you intended to retire from your employment with PennDOT as of January 30, 2016, and accept a position with a private engineering consulting firm (the “Firm”). You stated that your main duties with the Firm will involve working on client relations, business development, staff development, and project management. You seek guidance as to whether the Ethics Act would impose 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 represent the Firm in marketing meetings before PennDOT’s Central Office or any PennDOT District (including District 5-0), the Pennsylvania Turnpike Commission (“Turnpike Commission”), or any other state, federal, or local agency; (2) Whether you would be permitted to represent the Firm with regard to existing contracts that the Firm has with PennDOT’s Central Office or any McGee, 16-513 February 22, 2016 Page 2 PennDOT District (including District 5-0), the Turnpike Commission, or any other federal, state, or local agency, and in particular, whether you would be permitted to attend design review/project status meetings and public meetings; (3) Whether your name could appear on invoices for the Firm on existing contracts with PennDOT’s Central Office or any PennDOT District (including District 5-0), the Turnpike Commission, or any other state, federal, or local agency; (4) Whether you would be permitted to assist with the preparation of any documents or designs for the Firm on existing or future contracts with PennDOT’s Central Office or any PennDOT District (including District 5-0), the Turnpike Commission, or any other state, federal, or local agency; (5) Whether your name and credentials could be included on any proposals for work with PennDOT’s Central Office or any PennDOT District (including District 5-0), the Turnpike Commission, or any other state, federal, or local agency; (6) Whether you would be permitted to seek information—especially if that information is available to the general public—from PennDOT’s Central Office or any PennDOT District (including District 5-0), the Turnpike Commission, or any other state, federal, or local agency, in an effort to assist in the preparation of designs, proposals, or other deliverables to PennDOT or other agencies such as the Turnpike Commission; and (7) Whether you would be permitted to work on design/build or design/bid/build projects for which the Firm is the designer for a low bid construction contractor which in turn has a contract with PennDOT’s Central Office or any PennDOT District (including District 5-0), the Turnpike Commission, or any other state, federal, or local agency. 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 an Assistant Highway District Engineer 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 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. McGee, 16-513 February 22, 2016 Page 3 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: § 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 McGee, 16-513 February 22, 2016 Page 4 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 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 5-0. 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 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 representing the Firm in marketing meetings before any unit of PennDOT, including but not limited to the Districts and the Central Office, as such activity(ies) would necessarily involve prohibited representation of the Firm before your former governmental body. Section 1103(g) would not prohibit you from representing the Firm in marketing meetings before the Turnpike Commission or any other state, federal, or local agency provided that such activity(ies) would not involve prohibited representation before PennDOT as delineated above. With regard to your second and third questions, you are advised as follows. During the one year period of applicability of Section 1103(g), you would be prohibited from representing the Firm before any unit of PennDOT, including but not limited to the Districts and the Central Office, with regard to any matter(s), including existing contract(s) that the Firm would have with any entity. Section 1103(g) would not apply to restrict you from representing the Firm before the Turnpike Commission or McGee, 16-513 February 22, 2016 Page 5 other state, federal, or local agencies with regard to existing contracts. However, where the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT. Section 1103(g) of the Ethics Act would prohibit you from attending meeting(s) with PennDOT on behalf of the Firm—including but not limited to design/review project status meetings and public meetings—as such would necessarily involve prohibited representation before PennDOT. Section 1103(g) of the Ethics Act would not prohibit you from attending meeting(s) with the Turnpike Commission or other state, federal, or local agencies subject to the condition that in performing such activity(ies), you would not engage in prohibited representation before PennDOT. Generally, during the one-year period of applicability of Section 1103(g), your name could not appear on invoices submitted to PennDOT by the Firm. However, if you would perform work for the Firm 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 formerly worked, specifically District 5-0, 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. Section 1103(g) of the Ethics Act would still prohibit you from engaging in conduct falling within the ambit of prohibited representation before PennDOT as set forth above. Section 1103(g) would not prohibit your name from appearing on invoices submitted to the Turnpike Commission or other state, federal, or local agencies by the Firm. However, to the extent that the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT as to such invoices, such as, for example, through the prohibited inclusion of your name on invoice(s) that you know or reasonably expect will be submitted to PennDOT. Turning to your fourth and fifth questions, you are advised that Section 1103(g) of the Ethics Act would prohibit you from assisting with the preparation of documents or designs for the Firm on existing or future contracts with PennDOT’s Central Office or any PennDOT District (including District 5-0), the Turnpike Commission, or any other state or federal agency unless you would be able to do so without engaging in prohibited representation before PennDOT. You are further advised that Section 1103(g) of the Ethics Act would prohibit you from including your name and credentials on proposal(s) for the Firm for work with any unit of PennDOT, including but not limited to the Districts and the Central Office, as such activity(ies) would necessarily involve prohibited representation of the Firm before your former governmental body. Section 1103(g) would not prohibit you from including your name and credentials on proposal(s) for the Firm for work with the Turnpike Commission or other state, federal, or local agencies. However, where the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT. In response to your sixth question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from making general informational inquiries to PennDOT’s Central Office or any PennDOT District, including District 5-0, provided that: (1) the information you would request would be available to the general public; and (2) such communications would not include prohibited representation as delineated above. Section 1103(g) of the Ethics Act would not prohibit you from making general informational inquiries to the Turnpike Commission or other state, federal, or local agencies. McGee, 16-513 February 22, 2016 Page 6 With regard to your seventh question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from working on design/build or design/bid/build projects for which the Firm is the designer for a low bid construction contractor which in turn has a contract with PennDOT’s Central Office or any PennDOT District (including District 5-0), the Turnpike Commission, or any other state, federal, or local agency, subject to the condition that in so doing, you would not engage in 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 an Assistant Highway District Engineer 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 5-0. 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 McGee, 16-513 February 22, 2016 Page 7 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