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HomeMy WebLinkAbout19-546 FrancoPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: wwwetbics.raQuy 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL October 10, 2019 To the Requester: Mr. Joseph M. Franco Dear Mr. Franco: 19-546 This responds to your letter received SeNember 6, 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 PTTS. § 1101 et sseg,, would impose restrictions upon employment of a District Utility Administrator folFowinOT termination of employment with the Pennsylvania Department of Z Transportation ("Penn Facts: You request an advisory from the Commission regarding the post- empi yTent restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On June 28, 2019, you retired from your employment as a District Utility Administrator with PennDOT in Engineering District 9-0. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of District Utility Administrator (job code 17385) has been obtained and is also incorporated herein by reference. You have been offered a position as a part-time Utility Coordinator with The FADS Group (the "Firm"). The Firm giforms design, inspection, and support services, and it serves as an engineer for the Pennsylvania Turnpike Commission, municipalities, authorities, and private entities. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to working as a Utility Coordinator for the Firm. In particular, you pose the following questions: (1) Whether you would be prohibited from performing work for PennDOT, having your name appear on invoices submitted to PennDOT, or being listed on a statement of interest for a PennDOT project; (2) Whether you would be permitted to perform utility coordination and related duties for existing contracts/agreements that the Firm has with the Pennsylvania Turnpike Commission, municipalities, and authorities; and R19 anco -546 ctog�r 10,2019 Page 2 (3) Whether your name could a ear in connection with the Firm's marketing efforts in pursuit of contracts tar non-PennDOT projects, Discussion: It is initial[ noted that pursuant to Sections 1107(10) and 11 07(l 1) of the 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 disc sed all of the material cts. In the former capacity as a District Utility Administrator for PennDOT, you would be considered a "public. employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. Zee, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1, This conclusion is based upon iF6 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 became a "former public employee" subject to Section 11 O3(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 he has been associated": § 1103. Restricted activities (g) Former official or employee. --No former public official or public employee shall represent a erson, with promised or actual compensation, on any matter e are the oovernmental body 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 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 any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbyingand 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. Franco, 19-546 MToTe-r 10, 2019 Page 3 "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 officia6 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 officiR—pub ric—employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, 0-p —in —io -n—M - 0 0 7 1 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 6 influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official/public 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 ' employee n invoices b 'tte' by his new employer to the former governmental i ic O'ces submitted u i m' body, , he invoices pertain a contract even t vo to -0 ! ct that existed prior to termination of service hsuch go ern menta body. d 6 h �a ,Opinion 91-012. However, if such a pre-existing contract oe ot i vol y f itd n involve the n I w re 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() only restricts the former public official/public employee with regard to representation before his former governmental body. The former public official/public employeeis 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 bol where the public official/public employee had influence or control but extends to he entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291* Sirolli Opinion 9-0-006; Sharp 1 0 _, Opinion 90-009-R. The governmental body with which you are deemed to have been associated upon termination of your employment with PennDOT is PennDOT in its entirety, Franco, 19-646 CFct—oVer 10, 2019 Page 4 including but not limited to EnQineennq District 9-0. Therefore, for the first Year following termination of our employment with Penn DOT, Section 1103 of the Ethics Act would apply and restrict "representation" of a ",person" before Pennb& You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from engagin in any activity(ies) that would involve prohibited representation before PennDOT as set forth above. Your specific questions shall now be addressed. In response to your first question, you are advised as follows. I During the first ear following termination of your employment with PennDOT Section 1103(g) of the ear Act would prohibit you from performing work for PennDOf unless vou would be able to do so without engagingin prohibited representation before p PennDOT as delineated above. Section 11.03(g) of the Ethics Act would prohibit you from permitting your name to be listed on statements) of interest submitted to PennDOT for PennDOT project(s) as such would necessarily involve prohibited representation before PennDOT. Generally, during the one-year period of applicability of Section 1103(g), your name could not appear on invoices submitted to PennDOT by the Firm. However, it you would perform work for the Firm on PennDOT contracts that existed before you terminated your employment with PennDOT, and if such contracts would not involve the 11 'fi 11 Engineering District 9- , your unit" of PennDOT where you formerly worker , s eci c:a name could appear on routine invoices submitted to Penn ii I as to those articular pre-existing contracts if required by the reyulations of PennDOT. See, AbramsNebster, supra. However the foregoing is limited to the submission ofWAhg hours. erection 11 03(g of the Ethics Act would still prohibit you from engagingn conduct falling within the Mit of prohibited representation before PennDOT forth above. With regard to your second question, you are advised that Section 1103(g of the Ethics Act would not prohibit you from performing utility coordination and relate duties for existincontracts/agreements that the Firm would have with the Pennsylvania Turnpike Commission, municipalities, or authorities subject to the condition that in enga . nin such activity(ies), you would not engage in prohibited representation before Re in Zi O). In response to your third question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from permitting your name to appear in connection with the Firm's marketing efforts in pursuit of contracts for non-PennDOT projects as i long as in so doing, you would not engage n prohibited representation before PennDOT. 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 Rosition, for a private pecuniary benefit as rohibited by Section 1 of the Ethics ct. Further, you are advised that Sections F1103(b) and 1103(c of the Ethics Act provide in part that no person shall offer or give to a public official lic employee and no public official/public employee shall solicit or accept anything orimonetary value based up on the understanding that the vote,, official action, or judgment of the public official/public employee woul 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. Fran, 19-546 �r 10, 2019 Page 5 Lastly the propriety of the proposed conduct has only been addressed under the Ethics Act; tke 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: In the former capacity as a District Utility Administrator for the Pennsylvania 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 sect., and the Regulations of the State Ethics Commission 51 Pa. Code § 11. et a, eq pan termination of your employment with PennDOT, you became a '"former pudic employee'" subject to Section 1 9) of the Ethics Act. The former governmental body is PennDOT in its entirety, inclu ing but not limited to Engineenng District 9-0. For the first year followingg termination of your employment with PennDOT, Section 1103(gg) of the Ethics Act would apply and restrict "representation" of a "person" before PennMT. 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 Advice ursuant to 51 Pa. Code § f3.2(h). The appeal may be receivedpat the Commission by handdelivery, 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, �4. —.�- Robin M. Hittie Chief Counsel