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HomeMy WebLinkAbout91-580 NuttMr. Scott Nutt Timber Bridge Services River Road Ridgway, PA 15853 Dear Mr. Nutt: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 19, 1991 91 -580 Re: Former Public Employee; Section 3(g); PennDOT; Assistant County Maintenance Manager, Highway Maintenance Manager I. This responds to your letter of August 10, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of an Assistant County Maintenance Manager classified as a Highway Maintenance Manager I following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: Having resigned your position as an Assistant County Maintenance Manager classified as a Highway Maintenance Manager I with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you seek an advisory opinion from the State Ethics Commission concerning your status or limitations regarding doing business with the Commonwealth of Pennsylvania. You indicate that you previously spoke by telephone with the Assistant Counsel for this Commission on August 6, 1991. You state that your duties with PennDOT were basically to maintain the state highways in Elk County, which you exemplify as including snow removal, road and shoulder maintenance, pothole repair, sign repairs, and bridge maintenance. Your area of responsibility was limited to Elk County. You were authorized to sign Department Purchase Authorization Orders, but material purchasing was performed by the Moris Coordinator. Your responsibility was to plan the needed work and needed material and to supervise and coordinate the crews performing the work, while the Moris Coordinator was responsible for material purchasing and delivery. At various times you would coordinate Mr. Scott Nutt September 19, 1991 Page 2 with vendors for deliveries. Material was purchased on a low bid basis. You state that your realm of influence was limited to managing the road system and crews and in Elk County only. You ask that reference be made to a previous ruling concerning Mr. George Brocious, a County Maintenance Manager, which ruling you believe limited his realm of influence to Jefferson County. You state your belief that your area of influence as an Assistant County Maintenance Manager would be much less than a County Manager's, if any. You seek an expedited advisory opinion because you have resigned your position with PennDOT and are hoping to do business with the Commonwealth. Although your letter of inquiry does not expressly so state, you have previously informed Assistant Counsel for this Commission that you now own a business called "Timber Bridge Services," and in fact your letter of inquiry was submitted on stationery bearing its letterhead. You state your understanding that Timber Bridge Services would not be prohibited from doing business with Pennsylvania, but you assure this Commission that you will not sign any contracts in your name until you receive a ruling as to your realm of influence. You have enclosed a copy of your performance objectives and a copy of the test announcement from the State Civil Service Commission for the position of Highway Maintenance Manager I, which documents are incorporated herein by reference. Additionally, copies of your job description and classification specification, as well as an organizational chart, have been obtained from PennDOT, all of which documents are also incorporated herein by reference. Discussion: As an Assistant County Maintenance Manager classified as a Highway Maintenance Manager I for PennDOT, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. Section 402; 51 Pa. Code Section 1.1. This conclusion is based upon the job description and job specification, 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 contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Mr. Scott Nutt September 19, 1991 Page 3 Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: 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. Initially, to answer your request the governmental body with which you were associated while working with PennDOT must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would be PennDOT, including but not limited to its operations in Elk County. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Mr. Scott Nutt September 19, 1991 Page 4 Therefore, within the first year after termination of service with PennDOT, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis PennDOT. It is noted that Act 9 of 1989 significantly broadened the definition of the term governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you were associated is PennDOT, including but not limited to its operations in Elk County. Thus, although you have requested that reference be made to a prior Advice issued to Mr. George Brocious, Advice 84 -631, that prior advice simply would have no application to you or to your situation. Advice 84 -631 was issued in 1984 under former Act 170 of 1978, and its conclusions do not apply under Act 9 of 1989. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, Mr. Scott Nutt September 19, 1991 Page 5 officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. 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 submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. Mr. Scott Nutt September 19, 1991 Page 6 The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. ' You may, assist in the preparation of any documents presented to PennDOT so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before PennDOT. Once again, however, the activity in this respect should not be revealed to PennDOT. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of PennDOT to secure information which is available to the general public. 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. Thus, you correctly have concluded that the Ethics Law would not prohibit Timber Bridge Services from doing business with the Commonwealth of Pennsylvania. However, your conduct would be restricted as set forth above. You could not engage in any conduct which would constitute "representing" any person - including but not limited to Timber Bridge Services - before your former governmental body. The restrictions as applied to you would not be limited to PennDOT operations in Elk County, but rather would encompass all of PennDOT. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has 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 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: As an Assistant County Maintenance Manager classified as a Highway Maintenance Manager I for PennDOT, you Mr. Scott Nutt September 19, 1991 Page 7 are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDOT, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is PennDOT, including but not limited to its operations in Elk County. The restrictions as to representation outlined above must be followed. 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. 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 request that the full Commission review this. Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the 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. Vincent J. Dopko Chief Counsel