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HomeMy WebLinkAbout19-528 YakupkovicPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Mr. Richard S. Yakupkovic Dear Mr. Yakupkovic: N, STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 June 4, 2019 FACSIMILE; 717-787-0806 WEBSITE: www.eth1cs,aa.ap-y 19-528 This responds to your letter dated May 19, 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 PT.TS, § 1101 et seq., would impose restrictions upon emFloyment of a Senior Civil Engineer Manager following termination of employmen with the Pennsylvania Department of Transportation ("PennDOT"). Facts: You request an advisory from the Commission regarding the post- empToyTent restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as a Senior Civil Engineer Manager with PennDOT in Engineerin% District 11 -0 ('District 1140), in which capacity you serve as the Portfolio Manager in the Project Delivery Unit. You have submitted copies of your official Commonwealth position description and an organizational chart for District 11 -0, which documents are incorporated herein by reference. A copy of the job classification specifications for the position of Senior Civil Engineer Manager (job code 11161) has been obtained and is also incorporated herein by reference. In your current position with PennDOT, you supervise several design squads that develop plans, specifications, and estimates for the purpose of advertisin? construction bid proposals for transportation projects. The work is completed by Dis rict 11 -0 staff and consultant engineering firms. You state that you anticipate terminating your Commonwealth employment upon reaching normal retirement age. Based upon the above Submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to: (1) pursuing employment opportunities prior to the termination of your Commonwealth employment; or (2 performing work for a new employer following the termination of your Commonweal employment. Y Kku kovic, 19-528 Ya uV J�F—e 2019 Page Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of The EthicFAct, 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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conc uct that constitutes a conflict of interest: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Subject to the statutory. exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public empipyeeis prohibited from using theauthorityof public office/employment or confidential information received by holding such public blic position for the private pecuniary benefit of the public official/public employee himlf, , any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including , but not limited to, discussing, conferring with others and lobbying for a particular result. Juliante, Order 809. Yaku 19-528 Tu _nelt mic 9 Page 3 Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or pive to a public official/public employee anything of monetary value 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 questions presented. As a Senior Civil Engineer Manager for PennDOT, you would be considered a "public employee" sub ect to the Ethics Act and the Regulations of the State Ethics Commission. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1; Ruzzi, Advice 18-560; Richter, Advice-T7 563; Windisch, Advice 17-559. This conclusionisbased upon the jTo-sitio6 description and tfi_e7J_ob_cT . Ossification 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 minims on the interests of another person. Consequently, upon termination of our employment with PennDOT, you would become a "former public employee" subject Section 11 03(g) of the Ethics Act. While Section 1103(p) does not prohibit a former public official/public emplo ee from accepting a position o 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 Vefore the governmental body with which he has been associated for one year after heleaves 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 submitt% bid or contract proposals which are signed by or contain e name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, associat 7ion, 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 —Yakut 0viC 19-528 une 9 Page 4 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 officiaVp-u-b Fic--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 aTbefore the former governmental body or bodies; (2) attempts to influence; narances ) submission of bid or contract proposals which are signed by or contain the name of the former public official/public employee; (4) participating ing in any matters before the pa 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, overnmental emplo ee on invoices submitted by his new employer to the former c I j body, even Athe invoices pertain to a contract that existed prior to termination of service with such governmental body. Sbhna -012. However, if such a re -existing �, Opinion 91 contract does not involve the unit w ere a former public employee worked, 4 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, er, the activit in this respect should not be revealed to the former governmental body. The Vthics 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(y) only restricts the former public otticial/public employee WIM re d to representation before his forme governmental body. The former public 0��Jr r 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 he entire body. Sep Legislative ournal of House, 1989 Session, No. 15 at 290, 291; $Jrolli, Opinion 90-006; Shar , Opinion 55-0- -R. The governmental body with which you would be deemed to have been associated upon termination of our employment with PennDOT would be PennDOT in its entirety, including but not your to District 11-0. Therefore, for the first year Yaku kovic, 19-528 Ju—neT, 00VIC9 Page 5 following termination of your employment with PennDOT, Section 1103, of the Ethics Act would apply and restrict "representation" of a "person" before Penn!)*. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting a position of employment with a new employer. However, Burin 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 delineated above. With regard to Section 1103(a) of the Ethics Act, you are generally advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your prospectively entering into a business/employment relationship with an entity subject to the conditions that you: (1) did not use the authority of your public position in matter(s) pertaining to such entity when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with such entity 0d 't r would otherwise receive a private pecuniary benefit relating to such entity; and (2) inot otherwise use the authority of your public position or confidential information received as a result of being in your public position in furtherance of securing a businesslemployment arrangement with such entity or other private pecuniary benefit relating to such entity. Cf., Desmond, Opinion 08-004. 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 Civil Engineer Manager for the Pennsylvania Department of Transportation ("PennDOT"), _you would be considered a "public e lo e subject to the Public Official and Employee Ethics Act ("Ethics Act 65 Pa �.�e su I et se., and the Regulations of the State Ethics Commission, 51 Pa. a 110 Code § k 1 et ieoi. Upon termination of your employment with PennDOT, you would become a 16—rmer public employee" subject to Section 11 03(g) of the Ethics Act. The former gqvernmental body would be PennDOT in its entirety, including but not limited to Engineering District 11 -0. For the first year following termination of your employment with PennDOT, Section 110N) of the Ethics Act would apply and restrict "representation" of a "person" be core PennDOT. The restrictions as to representation outlined above must be followed. With regard to Section 1103(a) of the Ethics Act, you are generally advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your prospectively entering into a business/employment relationship with an entity subject to the conditions that you: (1) did not use the authority of your public position in matter(s) pertaining to such entity when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with such entity or would otherwise receive a private pecuniary benefit relating to such entity; and (2) inot otherwise use the authority of your public position or confidential information received as a result of being in your public position in furtherance of securing a business/employment arrangement with such entity or other private pecuniary benefit relating to such entity. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 11 07(l 1) 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 Yaku kOvic, 19-528 �une19 Page 6 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 fun 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 act11 received at the Commission within thirty (30) days of the date off this Advice pursuant to 51 Pa. Code § 1'3.2(h). They appeal may be received at the Commission by hand delivery United States mail, delivery service, or by FAX transmission (717-W 0806). Failure to Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, 4Robin�M. Hittie Chief Counsel