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HomeMy WebLinkAbout19-535 GabelPHONE' 717-783-1610 TOLL FREE: 1-800-932-0936 To the IRequester: Ms. Karen Gabel Dear Ms. Gabel: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 8, 2019 FACSIMILE: 717-787-0806 WEBSITE: 19-535 This responds to your letter dated July 16, 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 P—a.-TS. § 1101 et seg., would impose restrictions upon employment of a Transportation Manager Mer 3 following termination of employment with the Pennsylvania Department of Transportation ("PennDOT"). Facts: You request an advisory from the Commission regarding the post- empf yment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as a Transportation Construction Manager 3 with PennDOT in the Bureau of Project Delivery, Contract Management Section, You have submitted copies of your official Commonwealth position description and an organizational ha the Bureau Project Delivery, which documents are , chart r' 'o - r re 6 u fP oj b classification specifications for the incorporated h b reference. A co of the incorporated herein re c itioof Trsport Ytion Construction ction Manager (job code 10660) has been obtained position isn also Transportation i and a inco rpo rated herein by reference. In your current position with PennDOT, your duties and responsibilities include: preparing and reviewing paper and electronic Engineering Agreements for Statewide onstruction Management and Inspection Services; (2) providing support to the PennDOT Engineering Districts, PennDOT Central Office staff, and local municipalities; (3) reviewing and evaluating consultant engineers' proposals for reasonable cost, preparing Engineering Agreements, and administering the execution of Engineering Aqreements within PennDOT's Engineer ruction Management System gECMS); (4) developing the standard- scope of work and general requirements for onstruction Inspection and Construction Management support agreements; and (5) completing the review and approval of consultant inspection staff resumes and wage rates. You seek guidance as to whether the Ethics Act would impose any restrictions upon you if you would retire from your Commonwealth employment and seek employment with a consultant that performs work for PennDOT and other alencies. In I particular, you ask whether you would be permitted to work for a consultant on its Gabel, 19-535 A—ugu6t 8, 2019 Page 2 contracts with: PennDOT Engineering Districts or other units of PennDOT; (2) agencies other thhan PennDOT, such as the Pennsylvania Turnpike Commission, the Pennsylvania Department of Environmental Protection, or the Pennsylvania Department of General Services; or (3) local municipalities. Discussion: It is initiall noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics --A t, 65 Pa.C.S. �§11107(110), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the farts that the requester has submitted, the Commission does not en age in an independent investigation of the facts, nor does it speculate as to facts tha 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 onlz affords a defense to the extent the requester has truthfully disclosed all of the material acts. As a Transportation Construction Manager 3 for PennDOT, you would be considered a "public employee subject to I Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Yee, Advice 16-562; Jones, Advice 16-5W-, Harter, Advice 15-546, This conclusion is Fa_s6d upon the posifi`5`57T6scription and the job assification 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 11 03(g) of the Ethics Act. While Section 1103(p) does not prohibit a former public official/public employee 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 �e 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 befio re the oovernmental 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: §11012. Definitions "Represent." To act on behalf of any other person in an activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed %y or contain e name of a former public official or public employee. Gabel, 19-535 Est 8�, 2019 Page 3 "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 within State government or a political subdivision by which the public official or employee is or has been employed ed or to which the public officialor 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 officia17pJb isemployeehimself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, lion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in an activi#y. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contracproposals which are signed by or contain the name of the former public official/publici employee; (4) participating n any matters before the former� governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89405. 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. - 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. AbramsNVebster, Opinion 951-011. 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 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. e Section 1103(,y) only restricts the former public official1public employee with rto representation before his former governmental body. The former public official/public rd 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 Gabel, 19-535 Aiu—gust 8, 2019 Page 4 control but extends to the entire body. See Leqislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion gn- K Sharp, Opinion 90-009-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 entiret . Therefore, for the your ear following termination of your employment with PennDOT, Section I I 03&of the Ethics Act would apply and restrict "representation" of a "person" before PennD You are advised that Section 11031g) of the Ethics Act would not prohibit you from accepting employment with a consultant that performs work for PennDOT and other agencies. However, during the first year following termination of your employment i, with PennDOT, Section 1103(0) of the first Act would prohibit you from engaging in an activityies) that would involve prohibited representation More PennDOT as d3ineated a ove. Section 1103( of the Ethics Act would prohibit you from working for a consultant on its contracts wiV. (1) any PennDOT Engineering District(s) or other unit(s) of PennDOT; (2) agencies other than PennDOT such as the Pennsylvania Turnpike Commission, the Pennsylvania Department of environmental Protection, or the Pennsylvania Department of General Services; or (3) local municipalities, unless you would be able to do so without engaging in 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 expressl 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 11103(a? of the Ethics Act. Further, you are advised that Sections -1 03(b and 1103(c of the Ethics Act provide in part that no person shall offer or give to a public officiallpu�lic 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 Transportation Construction Manager 3 for the Pennsylvania po� DepartmenlF of Transportation, (PennDOT"), _you would be considered a public em lo e" subject to the Public Official and Employee Ethics Act ("Ethics Act 65 P �.�e - Regulations of the State Ethics Commission, 51 Pa. a . f 110 et seq., and the Code § l.1 et sue. Upon termination of your employment with PennDOT, you would become a "fo7rmer public employee" subject to Section 1 103(�) of the Ethics Act, The former governmental body would be PennDOT in its entirety. or 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 PennD&. 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. Gabel, 19-535 Est 8, 2919 Page 5 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 actuall received at the Commission within thirty (30) days of the dati-of this Advice pursuant to 51 Pa. Code § 112(h). The appeal may be received at the Commission by handy 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. Sincerely, Robin M. Hattie Chief Counsel