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HomeMy WebLinkAbout16-562 YeeSTATE ETHICS COMMISSION 309 FINANCE BUILDING ?O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF. COUNSEL November 7, 2016 To the Requester: Mr. James Yee 16 -562 Dear Mr. Yee: This responds to your letters dated September 9, 2016, and September 14, 2016, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act fa Ethics Act "), 65 PT.0 S. § 1101 et seq., would impose restrictions upon employment o Transportation Construction Manager 3 following termination of employment with the Pennsylvania Department of Transportation ( "PennDOT "). Facts: You request an advisory from the Commission regarding the post- empToyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. As of June 17, 2016, you retired from your employment as a Transportation Construction Manager 3 with PennDOT in the Bureau of Project Delivery, Highway Delivery Division, Contract Management Section. You have submitted copies of your official Commonwealth position description, the job classification specifications for the position of Transportation Construction Manager 3 (job code 10660), and an organization chart for the Contract Management Section, which documents are incorporated herein by reference. You state that in your former Commonwealth position, your duties included overseeing certain matters pertaining to the Engineering Construction Management System (ECMS), managing the quality assurance review of work orders approved for payment, coordinating the Finals Unit activities associated with the close -out procedures for federal aid projects, and providing management reports utilizing Crystal Reports software. You are considering pursuing employment with a consultant that performs work for PennDOT and other state, local, or private entities. 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 employment with PennDOT. In particular, you pose the following questions: (1) Whether you would be permitted to work for a consultant on its contracts with local municipalities or agencies other than FAX: (717) 787 -0806 a Web Site: www.ethics.state.pa.us 0 e -mail: ethics state. a.us Yee, 16 -562 `!Tovember 7, 2016 Page 2 (2) (3) PennDOT, such as the Pennsylvania Department of Environmental Protection or the Pennsylvania Turnpike Commission; Whether you would be permitted to work for a consultant that has contracts with PennDOT, where you would not provide any services on any specific PennDOT agreements; and Whether you would be p performing audits or employees who would b construction pro ect sites, invoiced to PennDOT. ermitted to providing e actively where y work in training working our work a support role to consultant on PennDOT would not be Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of e Ethics Act, 65 Pa.C.S. y§§ 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 disc osed all of the material facts. In the former capacity as you would be considered a ' Regulations of the State Ethics 11.1; Jones, Advice 16 -555; conclusion is based upon specifications, which when re power exists to take or reco respect to monitoring auditing; or the interest one or grants other sofan a Transportation Construction Manager 3 for PennDOT, 'public employee" subject to the Ethics Act and the Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § Harter, Advice 15 -546; Nazar, Advice 13 -579. This t�osition description and the job classification viewed on an objective basis, indicate clearly that the mmend official action of a non - ministerial nature with more of the following: contracting; procurement; administering or or subsidies; planning or zoning; inspecting; licensingg; regulating; activity(ies) where the economic impact is greater than de m6imis on other person. Consequently, upon termination of your empplo ment with PennDOT, you became "former public employee" subject to Section 1103(g of the Ethics Act. While Section 1103(8) 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 Yee 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 bod with which he has been associated for one year after a eaves 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 m the Ethics Act as follows: Yee, 16 -562 M_Vv tuber 7, 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 off icialFp—ubf c 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 ggovernmental 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. Sha , Opinion 91 -012. However, if such a pre- existing contract does not involve the unit ere 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 Yee, 16 -562 M- vember 7, 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 officiallpublic 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 emoyee 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. Therefore, for the first year following termination of your employment with PennDOT, Section 1103(8g) of the Ethics Act would apply and restrict "representation" of a "person" before PennDOT. Turning to your three specific questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from: (1) Working for a consultant on its contracts with local municipalities or agencies other than PennDOT, such as the Pennsylvania Department of Environmental Protection or the Pennsylvania Turnpike Commission; (2) Working for a consultant that has contracts with PennDOT, where you would not provide any services on any specific PennDOT agreements; or (3) Working in a support role performing audits or providing training to consultant employees who would be actively working on PennDOT construction project sites, where your work would not be invoiced to PennDOT. sub*t to the condition that in performing such activity(ies), you would not engage in prohibited representation before PennDOT as set forth above. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(8) only. It is expressly assumed that there has been no use of authority of office or employment, or confidential information received by bein 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 103(b) and 1103(c) of the thics 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. Yee, 16 -562 NFovember 7, 2016 Page 5 Conclusion; In the former capacity as a Transportation Construction Manager 3 or the Pennsylvania Department of Transportation ( "PennDOT "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act Oics Act "), 65 Pa.C.S. 1101 et seq., and the Regulations of the State Ethics mission, 51 Pa. Code 1'1.1 et se . upon termination of your employment with PennDOT, you became a "former public employee" subject to Section 1103 {8} of the Ethics Act. The former governmental body is PennDOT in its entirety. 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 writingg 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, obin M. Hittie Chief Counsel