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HomeMy WebLinkAbout91-582 ShaySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 20, 1991 Mr. Wendell L. Shay 91-582 2315 Wells Drive Bethel Park, PA 15102 Re: Former Public Employee; Section 3(g); PennDOT; Locations - Contract Management Engineer, Highway Design Manager. Dear Mr. Shay: This responds to your letter of August 22, 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 a Locations - Contract Management Engineer classified as a Highway Design Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: Having retired from the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), District 11 -0, Pittsburgh office, on March 5, 1991 after more than twenty years of state service, you seek the advice of the State Ethics Commission regarding your new employment with HDR Engineering, Inc. ( "HDR "). During your career with PennDOT, your most senior position was as Highway Design Manager in charge of the District Locations /Contract Management Unit. You state that none of your positions with PennDOT, including your position as Highway Design Manager, ever included the responsibility or authority to make policy for PennDOT. On March 21, 1991 you accepted a position with HDR as a Senior Project Manager. In that capacity, you are responsible for reviewing drawings, cost estimates and projected work schedules for private construction projects from HDR's offices located in Three Gateway Center, Pittsburgh, Pennsylvania. You also gather data and other information that relates to construction projects, review invoices and make staff recommendations for completing projects. While you were employed with PennDOT, HDR was selected to perform an Open -end Value Engineering project for the six Mr. Wendell L. Shay September 20, 1991 Page 2 engineering districts in Western Pennsylvania. HDR plans to assign you to the project as Project Coordinator when PennDOT issues a Notice to Proceed. In that capacity, you plan to provide the same services that you presently provide to private contract administration, but you expressly state and represent to this Commission that you will not be: 1. corresponding with any PennDOT personnel, 2. attending any meetings that relate to the PennDOT contract, 3. identified in any documents submitted to PennDOT other than HDR invoices to PennDOT for your services (You advise that PennDOT regulations require that your name appear on invoices, and not just your position), 4. negotiating any changes to this contract, or any new contracts with PennDOT, 5. making any presentations to PennDOT personnel, and 6. developing new business with PennDOT on behalf of HDR for the duration of the Ethics Law's one -year prohibition period through March 5, 1992. You state that you are refraining from engaging in any of these activities out of concern for violations of the Ethics Law and its regulations. However, your availability to work on this project is critically important to your continued employment with HDR because of HDR's lack of private project work and the economic downturn in the construction industry. Based upon the above, you seek an advisory opinion to clarify your position. Copies of your job description and job classification specification, together with an organizational chart, have been obtained from PennDOT, which documents are incorporated herein by reference. Discussion: It is initially noted that your request for advice may only be addressed with regard to your prospective conduct. As a Locations - Contract Management Engineer classified as a Highway Design Manager 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 Mr. Wendell L. Shay September 20, 1991 Page 3 Section 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates 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 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, Mr. Wendell L. Shay September 20, 1991 Page 4 including but not limited to District 11 -0. 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. 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 District 11 -0. 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 Mr. Wendell L. Shay September 20, 1991 Page 5 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 sector, that individual should not be allowed to utilize his association with the public sector, 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. Thus, the Ethics Law would not prohibit or restrict you from continuing your employment with HDR, nor would it preclude you from working on any given project. However, your conduct must be in conformity with the requirements of the Ethics Law, and in particular, Section 3(g). 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; Mr. Wendell L. Shay September 20, 1991 Page 6 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. As you can see from the above, the restrictions of Section 3(g) would not preclude you from being the Project Coordinator on the Open -end Value Engineering project referenced in your inquiry, but would prevent you from "representing" HDR before PennDOT with regard to that or any other matter during the one - year prohibition period. Thus, it is possible that your work would have to be performed in -house with other individuals making any necessary contacts with PennDOT. 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. In this regard, your letter of inquiry parenthetically mentions that your name would appear on invoices submitted to PennDOT, rather than just your position, and you reference PennDOT regulations as requiring such. This would be prohibited by the Ethics Law. See Stinson, Advice 91- 529 -S. The definition of the term "represent" would preclude submitting your name to PennDOT on invoices. Therefore, given the specific prohibitions of Section 3(g) of the Ethics Law, as well as the Commission's interpretations of that Section, your name must not appear on invoices - or any other materials, for that matter - submitted by or on behalf of HDR to PennDOT. 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 Mr. Wendell L. Shay September 20, 1991 Page 7 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. 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 Governor's Code of Conduct. Conclusion: As a Locations - Contract Management Engineer classified as a Highway Design Manager for PennDOT, you 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 District 11 -0. The restrictions as to representation outlined above must be followed. Observance of the restrictions of Section 3(g) of the Ethics Law would preclude the appearance of your name on invoices or any other documents or materials submitted to PennDOT by or on behalf of your employer, HDR Engineering, Inc., during the one -year period following termination of your 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. Mr. Wendell L. Shay September 20, 1991 Page 8 This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you tha fa reason to challenge same, you y 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 §2.12. Sincerely, Vincent . Dopko Chief Counsel