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HomeMy WebLinkAbout17-530 PerchaSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 -932 -0936 ADVICE OF COUNSEL May 2, 2017 To the Requester: Ms. Melanie S. Percha Dear Ms. Percha: 17 -530 This responds to your letter dated March 21, 2017, 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 P a.G_.S. L1101 et sec.., would impose restrictions upon employment of a Hig way Design anager 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. You are currently employed as a Highway Design Manager 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. A copy of the fob classification specifications for the position of Highway Design Manager (lob code 10340) has been obtained and is also incorporated herein by reference. In your current position with PennDOT, you are a project manager. You state that your work is limited to projects assigned to you within the five - county region of Engineering District 10 -0. All consultant selections with which you have involvement are completed by committee and not by you as an individual. All consultant selections are approved by a PennDOT Central Office committee of which you are not a member. You state that you do not: (1) serve on any statewide PennDOT committees. (2) dictate or direct any PennDOT -wide or Engineering District -wide policies; (3) participate in the selection of consultants for statewide contracts; (4) direct construction contractors working on any PennDOT projects; or (5) pay invoices from construction contractors working on PennDOT projects. You are considering retiring from your employment with PennDOT in 2017 and pursuing employment in the private sector with a consultant or contractor firm that does business with PennDOT. 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 ask whether you would be permitted to work for a FAX: (717) 787 -0806 Web Site: www.ethics.state.pa.us 0 e -mail: ethics0state.pa.us Percha, 17 -530 10y22017 Page 2 consultant or contractor firm on PennDOT projects that are not Engineering District 10 -0 projects. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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 a Highway Design Manager for PennDOT, _you would be considered a " ublic employee" sub1'ect to the Ethics Act and the Re ulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code 11.1; Heeter, Advice 15 -552; Bendo, Advice -563; Keller, Advice 07 -561. This conclusions based upon the position description and the j B classification specifications, which when reviewed on an ob*ective 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. 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 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 aovernmental bodv 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. Percha, 17 -530 May 2, 2017 Page 3 "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 officiaTTp_u_6 if 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 awn 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 officiallpublic 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. SShay, 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 byy the regulations of the agency to which the billing is being submitted. AbramslWebster, 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 11030g 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 employee had influence or control but extends to he entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion �0 harp, Opinion 90-009-R. Percha, 17 -530 May y 2, 2017 Page 4 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 Engineering, District 10 -0. Therefore, for the first year following termination of your employment with PennDOT, Section 11030(g of the Ethics Act would apply and restrict "representation" of a "person" before PennDOT. You are advised that Section 1103(8) of the Ethics Act would not prohibit you from accepting employment with a consultant or contractor firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from working for a consultant or contractor firm on PennDOT projects —regardless of whether they would be Engineering District 10 -0 projects— unless you would be able to do so without engaging in prohibited representation before PennDOT as delineated above. 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 1'103 a of p p t p 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 a Highway Design Manager for the Pennsylvania Department of Vans`- pion ( "PennDOT"), you would be considered a "public emppto ee subject to the Public Official and Employee Ethics Act ( "Ethics ActPal. 65 Pa.C.S. 1101 et seq., and the Regulations of the State Ethics Commission, 51 Code § 11. et seq. Upon termination of your employment with PennDOT, you would become a "firmer 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 10 -0. For the first year following termination of your employment with PennDOT, Section 1'103 {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. Percha, 17 -530 May 2, 2017 Page 5 Any such appeal must be in writingg and must be ac_tual& received at the Commission within thirty (31 days of the date` of this Advice pursuant to 51 Pa. Code § 13.2(h). The ap eal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 -0806. Failure to Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel