HomeMy WebLinkAbout19-522 BennettPHONE: 717 -783 -1610
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ADVICE OF COUNSEL
May 15, 2019
To the Requester:
Mr. James Bennett
Senior Planner
Transportation Services
Dewberry Engineers Inc.
Dear Mr. Bennett:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.pa.gov
19 -522
This responds to your letter dated March 13, 2019, and your submission received
March 18, 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
TS. § 1101 et sew., would impose restrictions upon employmen of an individual
employe /serving as the Land Planning Manager, Assistant Zoning Officer, and Code
Enforcement Officer for Silver Spring Township, Pennsylvania, following termination of
employment/service with Silver Spring Township.
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.
Until January 25, 2019, you were employed as the Land Planning Manager for
Silver Spring Township (" Township"), Pennsylvania, in which capacity you served as the
Township Assistant Zoning Officer and the Township Code Enforcement Officer. You
have submitted a copy of a job description (the "Job Description ") for the position of
Land Planning Manager for the Township, which document is incorporated herein by
reference. It is noted that per the Job Description, the position of Land Planning
Manager is within the Township Community Development Department ( "Community
Development Department ") and reports to the Community Development Director. The
Job Description lists service as Assistant Zoning Officer and Code Enforcement Officer
for the Township among the "essential functions of the Land Planning Manager.
You are currently employed with Dewberry Engineers Inc. (the "Firm ") as a
Senior Planner, Transportation Services. The Firm provides various engineering and
planning services to governmental entities in Pennsylvania at the local, county, and
state level.
Bennett, 19 -522
May 5, 2019
Page 2
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/service with the Township. In particular, you pose the following questions:
(1) Whether you would be required to wait for a particular period of time
before you would be permitted to market the Firm's services to the
Township,
(2) Whether there would be any restrictions upon the type of marketing
activities /efforts that you could engage in with regard to marketing the
Firm's services to the Township;
(3) Whether you would be prohibited from marketing the Firm's services to
governmental entities other than the Township; and
(4) Whether you would be prohibited from completing work for the Township.
Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(11) of
to i EFs 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 disclosed all of the material facts.
In the former capacity as the Township's Land Planning Manager, in which
capacity you served as the Assistant Zoning Officer and Code Enforcement Officer for
the Township, you would be considered a public official/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.
Consequently, upon termination of your employment/service with the Township,
you became a former public official/public employee subject to Section 1103(g) of the
Ethics Act.
While Section 11030 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 ersonn, with
promised or actual compensation, on any matter before the
governmental bod 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," "governmental body," and " overnmental 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
Bennett, 19 -522
May 5, 2019
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." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"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 officiaFpu t i 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.
Popovil 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. _Shama , 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. AbramsANebster,
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
Bennett, 19 -522
May 15,, 2019
Page 4
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 1'103 (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 officiallpublic
I had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 0- 067,8T arp, Opinion 90- 009 -R.
The governmental body with which you are deemed to have been associated
upon termination of your employment/service with the Township is the Community
Development Department in its entirety. Therefore, for the first year following
termination of your employmentfservice with the Township, Section 1103(g) of the
Ethics Act would apply and restrict "representation" of a "person " — including but not
limited to the Firm — before the Community Development Department.
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, second and third questions, you are advised as follows.
During the first year followin termination of your employment/service with the
Township, Section 1103(8) of le Ethics Act would prohibit you from marketing the
Firm's services to the Community Development Department as such would necessarily
involve prohibited representation before the Community Development Department.
Section 1103(8) of the Ethics Act would not prohibit you from: (1) marketing the Firm's
services to ownship officials and/or entities (such as departments, commissions,
boards, committees, and the like) that are not part of the Community Development
Department; or (2) marketing the Firm's services to governmental entities other than the
Township, subject to the condition that in so doing, you would not engage in prohibited
representation before the Community Development Department as set forth above.
In response to your fourth question, you are advised that Section 1103(g) of the
Ethics Act would prohibit you from performing work for the Township unless you would
be able to do so without engaging in prohibited representation before the Community
Development Department as delineated above.
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.
Conclusion; In the former capacity as the Land Planning Manager for Silver
prang Township ( "Township "), Pennsylvania, in which capacity you served as the
Township's Assistant Zoning Officer and Code Enforcement Officer, you would be
considered a public official/plublic employee subject to the Public Official and Employee
Ethics Act ( "Ethics Act " }, 65 Pa.C.S. § 1101 et sew., and the Regulations of the State
Ethics Commission, 51 Pa. Code § 11A_-6t seq. Upon termination of your
employment/service with the Township, you became a former public official/public
employee subject to Section 1103(g) of the Ethics Act. The former governmental body
Bennett, 19 -522
May 15,, 2019
Page 5
is the Township Community Development Department ( "Community Development
Department ") in its entirety. For the first year following termination of p your
employment/service with the Township, Section 1103(8) of the Ethics Act would apply
and restrict "representation" of a "person " — including but not limited to your new
employer, Dewberry Engineers Inc. — before the Community Development Department.
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 actuallLt
received at the Commission within thirty (30) days of the date o ►s
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
Me such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal
Sincerely,,
obin M. Hittie f/!
Chief Counsel