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HomeMy WebLinkAbout91-576-S2 SolomonDear Mr. Solomon: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 1 71 08 -1 470 TELEPHONE (717) 783.1610 ADVICE OF COUNSEL January 6, 1992 Mr. Paul J. Solomon c/o Hunt Engineers & Architects, Inc. 410 Penn Street Williamsport, PA 17701 91- 576 -S2 Re: Former Public Employee; Section 3(g); PennDOT; Civil Engineer Manager- General; Soils Engineer; Second Supplemental Advice. This responds to your letters of October 28, 1991, and November 11, 1991 in which you requested a second supplemental Advice from the State Ethics Commission. Issue: Whether the restrictions of the Public Official and Employee Ethics Law, which are applicable to you as a former Soils Engineer classified as a "Civil'Engineer Manager- General for PennDOT, would restrict or prohibit the submission of your name on documents submitted by or on behalf of your new employer to PennDot, or would restrict you from providing services to PennDOT as a consultant after which you would return to work for your present private employer. Facts: Following a letter of request of August 2, 1991, Advice of Counsel 91 -576 was issued which is incorporated herein by reference. That Advice concluded that upon termination of service as a Soils Engineer classified as a "Civil Engineer Manager - General" for PennDOT, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. Your former governmental body was determined to be PennDOT, including but not limited to District 3 -0. The Advice determined that the restrictions of Section 3(g) of the Ethics Law would not extend beyond your former' governmental body to municipalities, federal or local agencies, or state agencies other than PennDOT. Mr. Paul J. Solomon January 6, 1992 Page 2 By letter dated September 27, 1991 you requested a supplemental advisory regarding Advice of Counsel 91 -576. Advice of Counsel 91 -576 -S was issued which is incorporated herein by reference. That Advice concluded that as a "former public employee" subject to Section 3(g) of the Ethics Law, with your former governmental body being PennDOT, the restrictions as to representation which were outlined in Advice 91 -576 as well as within the supplemental Advice had to be observed. The supplemental Advice specifically concluded that the Ethics Law would prohibit you from performing the duties of your new employment on project sites where PennDOT personnel are present. You would be permitted to access publicly available information at the PennDOT storage building subject to the condition that through such conduct you would not directly or indirectly disclose your involvement on behalf of your new employer. You would be permitted to examine core boxes at a neutral site conditioned upon the assumption that the transportation of the core boxes to the neutral site would not involve accommodations by PennDOT based upon your involvement on behalf of your new employer. By letter dated October 28, 1991, you requested yet another supplemental advisory,. regarding Advice 91 -576 and supplemental Advice 91- 576 -S. You asked whether it would be acceptable for you to perform work under a PennDOT District 3 -0 contract with your new employer, a local engineering company, Hunt Engineers, Inc., where the work performed under the contract would be on items that would not present you as having any direct contact with the Department. You stated that the only written literature where your name would appear would be on the 'list of employees and approved wage rates request and on one sheet of the standard monthly invoicing form. You submitted a sample of each of these documents, all of which documents are incorporated herein by reference. You noted that the request for wage rates are approved by Chuck Allwein, of the "Central Office." Monthly invoices go directly to "the District" where they are reviewed and forwarded to the "Control Office" for processing. Following the receipt of your letter of October 28, 1991, clarification was requested by the Commission. The request for clarification noted that it appeared that all of the documents which you had submitted for review by this Commission were documents which would be submitted by your new employer to PennDOT. It was noted that Mr. Chuck Allwein of the "Central Office" is in fact Chief of PennDOT's Consultant Agreement Division. The request for clarification further noted the Commission's assumption that by stating that monthly invoices go directly to "the District," you meant District 3 -0 of PennDOT. Mr. Paul J. Solomon January 6, 1992 Page 3 The request for clarification concluded by asking you to confirm the Commission's understanding of the above facts, to state any perceived basis to distinguish your question from the restrictions and prohibitions set forth in the prior Advice and supplemental Advice which were issued to you, and to include any other questions you may have for the Commission's consideration. Your response letter dated November 11, 1991 states that you are confused and frustrated in your attempt to abide by a law that you feel is contradictory. You outline three "cases" which set forth your questions. In Case #1, you reference the Route 15 bypass project in PennDOT District 3 -0. Your proposed activities would be to take, plot, and analyze field readings, and to consult with fellow employees on field readings and their analysis. You reference Advice 91 -576 in which this particular Case was addressed. You state as the limitation, that PennDOT does not know that you are involved with the Route 15 bypass project, again referencing Advice 91 -576. You state that the problem is that the law seems to be telling you that the only way you can perform the above mentioned activities as an employee of Hunt Engineers Inc., is to donate your time for free. You state that every engineering firm of which you are aware must charge an employee's time to the project he is working•on. This charge is obviously passed on to the .client .with appropriate billing. You acknowledge that the law permits a range of permissible activities which you may perform, but you believe that if you get paid for them the subsequent. accounting and billing that is required by law or PennDOT requirements identifies you as an employee of Hunt Engineers, Inc. and the project you are working on. You state that in theory, the law permits certain activities but in reality there is no way you can get paid for them. In Case #2, you discuss a township bridge design project where your activities would be core boring location, inspection of actual drilling, filling out an engineer's drilling log, evaluating and recommending foundation pressures and the type of foundation to be used, and submitting a foundation report. You state that your name would appear on many of these documents which would then be submitted to PennDOT for approval in addition to the same invoices outlined in Case #1 above. You state that. as to limitations, there would be none, referencing Advice 91 -576. You believe that this is contradictory. For this township bridge project, you-state that four times the amount of paperwork would be submitted to PennDOT for review identifying you as an employee of Hunt Engineers, Inc., as compared to the Mr. Paul J. Solomon January 6, 1992 Page 4 Route 15 bypass project, yet you state that it is permissible for you to be paid for this service. Finally, in Case #3, you again reference the Route 15 bypass project. You state that it is your understanding that existing legislation would permit PennDOT to hire you as a consultant for a period of ninety days per year. If this were to happen, you state that you know you would be working on the Route 15 bypass project. You pose two questions. You ask why it is legal for you to work on a PennDOT project if PennDOT pays you, but it is illegal for you to work on the same project and get paid by Hunt Engineers, Inc. Secondly, you ask if you were to accept this short term employment with PennDOT to work on the Route 15 bypass and then return to employment with Hunt Engineers, Inc., whether you would be prohibited from working on PennDOT projects for an additional twelve months because you worked for PennDOT for ninety days. In concluding your letter, you state that the law seems to be so entangled. that it becomes confusing, contradictory and discriminatory. ' You note that as a licensed professional engineer in Pennsylvania, you have a sworn obligation to practice your profession to the best of your ability both morally and ethically, regardless of who is signing your paycheck. You believe that a law that would prevent you from doing that, just because you were a PennDOT employee, would seem discriminatory. Based upon all of the above, you request a second supplemental Advice from this Commission. Discussion: It is initially noted that you have raised very specific issues involving the submission of your name on documents submitted by or on behalf of your new employer to PennDOT, and the prospect of your performing consulating work for PennDOT, thereafter returning to the employment of Hunt Engineers, Inc. This second supplemental Advice will focus upon these specific issues which you have raised. Prior Advice 91 -576 and supplemental Advice 91-576-S which were issued to you and which have been incorporated herein by reference will not be restated. There appears to be no doubt that you are confused on the specific issues which you have raised. Indeed, you have erroneously characterized some of the restrictions of Section 3(g) as they apply to you and as they were outlined in the prior Advice and supplemental Advice which were issued to you. Section 3(g) of the Ethics Law provides that: Mr. Paul J. Solomon January 6, 1992 Page 5 Section 3. Restricted activities (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 5403(g). Turning to Case #1, involving the Route 15 bypass project in PennDOT District 3 -0, Advice 91 -576 did not tell you that the only way you could perform activities on behalf of your new employer would be to donate your time "for free." Section 3(g) of the Ethics Law does not prohibit the submission of an invoice which includes your time to the former governmental body, so long as you are not identified on the invoice. In Shag, Advice 91 -582, this precise issue was addressed. That Advice concluded inter alia, that Mr. Shay's name could not appear on invoices or any other materials submitted by or on behalf of his new employer to PennDOT. Mr. Shay appealed the Advice 91 -582 to the Commission, and the Commission affirmed the Advice of Counsel. Shay, Opinion 91 -012. In response to Mr. Shay's argument that PennDOT regulations would require that his name appear on such invoices, and not just his, position, the Commission stated: "Even if we assume it to be true, however, it is the duty of this Commission to enforce the Ethics Law and we do not the latitude to ignore the requirements of Section 3(g) of the Ethics Law as it has been duly promulgated by the General Assembly of the Commonwealth of Pennsylvania, to favor the regulations of PennDOT or any other agency." Shav, Opinion 90 -012 at 5. Thus, in answer to Case #1 which you posed, your name may not appear on invoices or anv other materials submitted by or on behalf of your new employer to PennDOT during the one year period of applicability of Section 3(g). Turning to Case #2 which you have posed regarding the township bridge design project, .the project appears to be one which you raised and which was discussed in supplemental Advice 91- 576 -S. It is of concern that under your outline as to "limitations" on this project, you have indicated the word "none." To the contrary, supplemental Advice 91- 576 -S, a six- Mr. Paul J. Solomon January 6, 1992 Page 6 page Advice, discussed this project at length and the restrictions which would apply to you with regard to your proposed activities. You are strongly urged to read supplemental Advice 91 -576 -S very carefully so that you will comply with those restrictions. As to the "problem" which you perceive for Case #2, there is nothing in the Ethics Law which would prevent you from being paid by your private employer for work on the township bridge design project, the Route 15 bypass project, or for any other project for that matter. However, the Ethics Law would and does prohibit your name from being submitted on invoices at a_y, other materials submitted by or on behalf of your new employer to PennDOT during the one year period of applicability of Section 3(g). Thus, you are in error if you believe that the paperwork to be submitted to PennDOT for the township bridge design project could include your name. It absolutely may not include your name. Finally, turning to Case #3, you raise for the first time the prospect of your being hired to provide services to PennDOT directly as a consultant for a period of ninety days per year. You are incorrect in assuming that you could be hired to consult directly with PennDOT during the one year period following termination of your employment with PennDOT. To the contrary, Section 3(g) of the Ethics Law would prohibit you from providing consulting services directly to PennDOT for one year following termination of your employment with that governmental body. On the other hand, you could return to work for PennDOT as an actual PennDOT employee, on PennDOT's'payroll and subject to all of the rules and restrictions that apply to Commonwealth employees. In that instance, you would cease to be a "former public employee." As explained in Casner supplemental Advice 91 -590 -S you would again become a "public employee" associated with the very same governmental body, PennDOT, so that the one year period of applicability of Section 3(g) would cease to run. Upon terminating your employment with PennDOT, you would once again become a "former public employee" and the one year period of applicability of Section 3(g) would commence to run again, for a new, full one year period. The Ethics Law does not place any limitation upon the number of times that a particular individual may become a "public employee" or a "former public employee." The restrictions of Section 3(g) are invoked in each instance where an individual becomes a "former public employee" and those restrictions apply for a full one year period in each such instance. Mr. Paul J. Solomon January 6, 1992 Page 7 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: ..Upon termination of service with PennDOT as a Soils Engineer classified as a "Civil Engineer Manager- General," you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is PennDOT, including but not limited to District 3 -0. The restrictions as to representation outlined in Advice 91 -576, supplemental Advice 91- 576 -S, and above must be followed. Section 3(g) of the Ethics Law would prohibit the inclusion of your name on invoices or any other materials submitted by or on behalf of your new employer to PennDOT. Section 3(g) of the Ethics Law would also prohibit you from _providing services to PennDOT. directly as a..consultant during the one year period of applicability of Section 3(g). Should you return to work for PennDOT as a PennDOT employee, you would no longer be a "former public employee" and the restrictions of Section 3(g) would at that point cease to apply to you. Upon terminating•your employment with PennDOT, you would once again become a "former public employee" and the restrictions of Sect- ,n 3(g) of the Ethics Law would once again apply to you for a full one year period following termination of the most recent employment with PennDOT. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with reason to challenge same, you Commission review this Advice. A Commission will be scheduled and a this Advice or if you have any may request that the full personal appearance before the formal Opinion from the Mr. Paul J. Solomon January 6, 1992 Page 8 Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, 14144we 2) A.A144. Vincent J. Dopko Chief Counsel