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HomeMy WebLinkAbout19-519 DunheimerPHONE: 717 - 783 -1610 TOLL FREE: 1- 800 -932 -0936 4 y, STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL May S, 2019 To the Requester: Mr. George Dunheimer Dear Mr. Dunheimer: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19 -519 This responds to your letter dated March 3, 2019, 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 Fa778. § 1101 et set., would impose restrictions upon employment of a Senior Assistant District (XeCUtNe, Transportation 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 a Senior Assistant District Executive, Transportation with PennDOT in Engineering District 6 -0. You have submitted copies of your official Commonwealth position description, the job classification specifications for the position of Senior Assistant District Executive, Transportation (lob code 11715), and an organizational chart for Engineering District 6- 0, which documents are incorporated herein by reference. You stated that you currently partici ate on several statewide multi- industry committees (the "Multi- Industry Committees ") that were formed for the betterment of policies and processes to increase the quality of work. The Multi- Industry. Committees have representatives from PennDOT, the Federal Highway Administration, the Pennsylvania Turnpike Commission, and private contractors and consultants. Meetings are generally set on a quarterly basis, and members of the Multi- Industry Committees are not compensated for their time or participation. You stated that you are currently a member of the Transportation Managers Training Workshop Committee ( "TMTW Committee ") The TMTW Committee has representatives from PennDOT, the Federal Highway Administration, the Pennsylvania Turnpike Commission, and the American Council of Engineering Companies. The TMTW Committee administers an annual workshop in early spring in order to provide current and relevant information to the workshop attendees. As a member of the TMTW Committee, you help set up and coordinate speakers for the workshop. Members of the TMTW Committee are not compensated for their service, which is voluntary. Dunheimer, 19 -519 Tl]ayy 8, 2019 Page 2 You stated that the transportation industry in Pennsylvania has several professional organizations and societies that conduct events such as regular meetings, training classes and workshops, and multiday conferences. The participants in the transportation industry events include PennDOT, the Federal Highway Administration, the Pennsylvania Turnpike Commission, the City of Philadelphia, bridge commissions, contractors, and consultants. Attendance at the transportation industry events is voluntary and requires payment most of the time. You stated that you would be retiring from your employment with PennDOT on March 22, 2019, and that you would be seeking employment within the transportation industry. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your Commonwealth employment. In particular, you ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to: (1) continuing to serve on the Multi-industry Committees; (2) continuin to support the annual workshop of the TMTW Committee on a volunteer basis; or ?3)being a member of transportation industry organizations /societies. 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 Senior Assistant District Executive, Transportation 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. 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 er�son, 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). Dunheimer, 19 -519 May 8; 2019 Page 3 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 officiaTlppu if c employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 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 officiallpublic 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 emplo ee on invoices submitted by his new employer to the former governmental body, even ifythe invoices pertain to a contract that existed prior to termination of service with such governmental body. Shaer, 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. AbramsNVebster, 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 Dunheimer, 19 -519 May 20 9 Page 4 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 re and 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 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 Engineering District 6 -0. Therefore, for the first year following termination of your employment with PennDOT, Section 11 03(g) of the Ethics Act would apply and restrict "representation" of a "person" before PennDOT. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment in the transportation Industrryy However, during the first year following termination of your employment with PennDOT, Section 1103( ) of the Ethics Act would prohibit you from enggaging in any activity(ies) that wouP involve prohibited representation before PennDOT as delineated above. You are further advised that Section 11 03(g of the Ethics Act would not prohibit you from: (1) continuing to serve on the Multi -ln ustry Committees; (2) continuing to support the annual workshop of the TMTW Committee on a volunteer basis; or (3) being a member of transportation industry organizations /societies, subject to the condition that in so doing, you would not engage in conduct that would constitute 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(g) 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 Ethics Act provide in part that no person shall offer or give to a pubic 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 officiallpublie 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 Senior Assistant District Executive, Transportation for the ennsy vania 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 seg., and the Regulations of the State Ethics Commission, 51 Pa. Dunheimer, 19 -519 May 8, Page 5 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 6 -0. For the first year following termination of your employment with PennDOT, Section 1103() 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 actuall received at the Commission within thirty (30) days of the date of th►mss vice pursuant to 51' Pa. Code § 73.2(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. Sin rely, Robin M. Hittie Chief Counsel