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HomeMy WebLinkAbout16-558 Fitzgerald ADVICE OF COUNSEL September 14, 2016 Jay M. Fitzgerald, P.E. 5514 Bearcreek Drive Mechanicsburg, PA 17050 16-558 Dear Mr. Fitzgerald: This responds to your letter dated August 1, 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 a Civil Engineer Consultant – Bridges 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 June 29, 2016, you retired from your employment as a Civil Engineer Consultant – Bridges with PennDOT in the Bureau of Project Delivery, Bridge Design and Technology Division. You have submitted copies of your official Commonwealth position description and an organizational chart for PennDOT, both of which documents are incorporated herein by reference. A copy of the job classification specifications for the position of Civil Engineer Consultant – Bridges (job code 1116B) has been obtained and is also incorporated herein by reference. You state that in your former Commonwealth position, you served as the “BRADD Manager.” You were responsible for the development, maintenance, update, support, and licensing of PennDOT’s Bridge Automated Design and Drafting (BRADD) Software. You state that you intend to seek employment with a private sector firm (the “Firm”) in the fall of 2016, in a position that would involve performing bridge analysis, bridge design, bridge drafting, bridge rating, and/or bridge software support services. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment with PennDOT. In particular, you pose the following questions: (1) For purposes of applying the Commission’s holding in Abrams/Webster, Opinion 95-011 (pertaining to invoices), whether the Bureau of Project Delivery would be considered the “unit” where you worked at PennDOT; Fitzgerald, 16-558 September 14, 2016 Page 2 (2) Whether your name could appear on invoices submitted to PennDOT by the Firm for work that you would perform on any pre-existing contracts with any of PennDOT’s eleven Engineering Districts; and (3) Whether your name could appear on invoices submitted to PennDOT by the Firm for work that you would perform on any new contracts with any of PennDOT’s eleven Engineering Districts, if your name was not included on any proposals, documents, or bids for such new contracts and you made no personal appearances before PennDOT and participated in no matters before PennDOT with regard to such new contracts. 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 Consultant – Bridges 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; Harding, Advice 08-604. 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 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: § 1102. Definitions Fitzgerald, 16-558 September 14, 2016 Page 3 "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 influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Fitzgerald, 16-558 September 14, 2016 Page 4 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 the Bureau of Project Delivery. 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. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity(ies) that would involve prohibited representation before PennDOT as set forth above. Your three specific questions shall now be addressed. For purposes of applying the Commission’s holding in Abrams/Webster, supra, the “unit” where you worked would be the Bureau of Project Delivery. Cf., Harding, supra; McGowan, Advice 06-551. During the one-year period of applicability of Section 1103(g) of the Ethics Act, as a general rule, your name could not be listed 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 worked, specifically the Bureau of Project Delivery, 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 permitting your name to appear on other material(s) submitted to PennDOT, including but not limited to invoices that would not fall within the narrow parameters of the Commission’s holding in Abrams/Webster, 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 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. Fitzgerald, 16-558 September 14, 2016 Page 5 Conclusion: In the former capacity as a Civil Engineer Consultant – Bridges 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 the Bureau of Project Delivery. 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