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HomeMy WebLinkAbout19-531 AndrewsPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL IMUMMIQ0. To the Requester: Mr. James R. Andrews, P.E. Dear Mr. Andrews: FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa,upy 19-531 This responds to your letter dated June 3, 2019 (postmarked June 6, 2019, received June 11 2019), b which you requested an advisory from the Pennsylvania State Ethics Commission ("Mmission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 P-a-.-TS. § 1101 et seg., would impose restrictions upon employment of an Assistant Highway District Erig—ineer following termination of employment with the Pennsylvania Department of Transportation ("PennDOT"). Facts: You request an advisory from the Commission regarding the post- empi yment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as an Assistant Highway District Engineer with PennDOT in Engineering District 10-0, in which capacity you serve as an Assistant District Executive for Design. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein b reference. A copy of the job classification specifications for the position of Assistant by District Engineer Oob code 11710) has been obtained and also incorporated herein by reference. You are a registered Professional Engineer in Pennsylvania, North Carolina, and South Carolina. You plan to retire from your employment with PennDOT by January 24 2020. You will relocate to North Carolina following your retirement from PennDOT, and you might take a position in the private sector. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your Commonwealth employment. Discussion: It is initially noted that pursuant to Sections 1107(10) and 11 07(l 1) of the EtRics 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 Andrews 19-531 July 9, 2 19 Page 2 facts relevant to the inquiry. 65 Pa.C.S. §§ 11107(10�, (11). An advisory on affords a defense to the extent the requester has truthfully disc used all of the material Izacts. As an Assistant Highway District Engineer for PennDOT, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commis C, 65 Pa.C.S, § 1102; 51 Pa. Code § 11. 1; Karr, Advice 16-554; McGee, Advice 16-5-13; Advice 10-584. This conclusion is bas-e--d-6pon the position description and the job classification sification 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 minims on the interests of another person. Consequently, upon On terminati f �our employment with PennDOT, you would F become a "former public employee subject to Section 1103(g) of the Ethics Act. While Section 1103(g) 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 betore the govemmental body with which he has been associated for one year after he leaves that boTY. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "'represent,`" "person," and "governmental body with which a public official or public employee i� 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 an activity which includes, but is not limited to, the following:ipersonal appearances, negotiations, lobbying and submitting subm nq bid or contract proposals which are signed by or contain the narne 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. ,Andrews, 19-531 TuTy- -�2_0 19 Page 3 The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public officiaT7pub Fic—employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, O—pinion 95-007. The term "represent" is also broadly defined to prohibit actin on behalf of any include: (1) personal person in any activity. Examples of prohibited representation ine, appearance I s 11 before L former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signedin any or contain the name of ffi the former public ocia public employee; (4) participating n any matters before the former. governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89-0105�, 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 e oge on invoices submitted y is employer to the former governmental body, even the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, 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. 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 ing that person's appearance before his former governmental body. Once again, regarding 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 �rd to �epesejntatjon before his former governmental body. The former public 0 1clal/pub Ic .rmpo�ee 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 he 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, Na. 15 at 290, 291; §j�irolli, Opinion gn- 067,Zfi—, ar pinion 90-009-R. p 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 1103( of the Ethics Act would apply and restrict "representation" of a "person" before PennDOT. Based u on the facts that have been submitted, this Advice has addressed the applicability of tction 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 rohibited by Section 1103�thics a� Of the Ethics Act. Further, you are advised that Sections f1l 03(b) and 11 03(c) of the Andrews 19-531 July 9 2 19 Page 4 Act provide in part that no person shall offer or give to a public official ublic employee and no public official/public employee shall solicit or accept anything o=netary value based up on the understanding that the vote, official action, or judgment of the public official/public employee wouldbe 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 a% 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 an Assistant Hi8hway District Enineer for the Pennsylvania Department of Transportation ("PennDOT"), u wouldbe considered a public em lo e" sub' t to the Public Official and �rmoployee Ethics Act ("Ethics Act"), 65 P .�, �e et seq., and the Regulations of the State Ethics Commission, 51 Pa. 110 1 pec Code § * 1 et sue. Upon termination of your employment with PennDOT, you would become a "former public employee" subject to Section 11 03(g) of the Ethics Act. The former governmental body would be PennDOT in its entirety, including but not limited to Enqineerin, District 10-0. For the first year following termination of your employment with PennDOT, OT, Section 1103(g) of the Ethics Act would apply and restrict Urepresentation " 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 I 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 thir7t (30) days of the date —of this Advice pursuant to 51 Pa. Code § 12(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-7870806). Failure to file such an appeal at the Commission Within thirty (30) days may result in the dismissal of the appeal. Sincerely, )Robin M. Hittie Chief Counsel