HomeMy WebLinkAbout93-594 WilsonJames B. Wilson, P.E.
Special Assistant to the Executive Director
Pennsylvania Turnpike Commission
P.O. Box 8531
Harrisburg, PA 17105
Dear Mr. Wilson:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
September 3, 1993
93 -594
Re: Conflict, Public Official /Employee, Associate Executive
Director, Chief Engineer, Secretary /Treasurer, Pennsylvania
Turnpike Commission, Special Assistant to the Executive
Director, Contracting, Business with which Associated,
Independent Consultant, Executive -Level State Employee,
Section 3(i), Former Public Employee, Section 3(g).
This responds to your letters of July 29, 1993 and August 5,
1993 in which you requested advice from the State Ethics
Commission.
Issue: Whether a Special Assistant to the Executive Director of
the Pennsylvania Turnpike Commission and former Associate Executive
Director, Chief Engineer and Secretary /Treasurer is prohibited or
restricted by the Public Official and Employee Ethics Law from
working with, being employed by or associated with a
business /person in a private capacity in addition to public
service; whether such individual or a business with which he is
associated under the Public Official and Employee Ethics Law may
engage in contracting with the Turnpike Commission; and whether the
Public Official and Employee Ethics Law presents any restrictions
upon employment of such individual following termination of service
with the Turnpike Commission.
Facts: You served as Associate Executive Director and Chief
Engineer for the Pennsylvania Turnpike Commission. You also served
as Secretary /Treasurer of the Turnpike Commission. You took early
retirement on June 30, 1993. Subsequently, you were asked by the
Turnpike Commission to return as an employee under the 95 -day
return provision. You indicated that you would serve the Turnpike
Commission until replacements were selected for your positions.
After replacements are found, you will remain with the Commission
Wilson, 93 -594
September 3, 1993
Page 2
as Special Assistant to the Executive Director for the balance of
the 95 days, serving on specifically designated projects such as
the Mon /Fayette Transportation Project, the Southern Beltway
Project and the I -95 Interchange Project.
Further, you have been approached by Syntonic Technology, Inc.
( Syntonic) to work as an independent consultant on several out -of-
state projects. These five (5) projects are detailed in your
letter and are incorporated herein by reference. None of the
projects on which you will be working involve work within
Pennsylvania; however, Syntonic does presently have contracts with
the Pennsylvania Turnpike Commission.
You state that while there is no job description for your
duties as Secretary /Treasurer, you indicate that it is an elective
office which maintains all Turnpike Commission records and
processes all Turnpike Commission payments. Likewise, there is no
job description for the position of Associate Executive Director,
but you have submitted a job description for the Deputy Executive
Director - Engineering and Chief Engineer and a Pennsylvania Turnpike
Commission organizational chart, which are also incorporated herein
by reference.
Subsequently, by letter dated August 5, 1993, you informed
this Commission that as of August 3, 1993 the position of Associate
Executive Director has been eliminated; the position of Deputy
Executive Director, Chief Engineer, and Secretary /Treasurer have
been filled; and you are now serving as Special Assistant to the
Executive Director.
Based upon the above, you request an advisory from the State
Ethics Commission regarding any possible violations of the Ethics
Law in connection with your proposed activities.
Discussion: Initially, it is expressly assumed that factually,
during the 95 days that you will be working for the Turnpike
Commission as Special Assistant to the Executive Director, you are
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. §4 02; 51 Pa. Code §11.1.
Further, as an Associate Executive Director, Chief Engineer and
Secretary /Treasurer for the Pennsylvania Turnpike Commission, you
were a "public employee ". This conclusion is based upon the job
descriptions, which when reviewed on an objective basis, indicate
clearly that the powers exist to take or recommend official actions
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 minimis on the interests of
other persons.
Wilson, 93 -594
September 3, 1993
Page 3
You also are an executive -level state employee as that term is
defined under the Ethics Law, and hence you are subject to the
requirements of Section 3(i) of the Ethics Law, infra.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority of his office or employment or any
confidential information received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
immediate family is associated.
"Authority of office or employment." The
actual power provided by law, the exercise of
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
"Executive -level State employee." The
Governor, Lieutenant Governor, cabinet
members, deputy secretaries, the Governor's
office staff, any State employee with
discretionary powers which may affect the
outcome of a State agency's decision in
relation to a private corporation or business
or any employee who by virtue of his job
Wilson, 93 -594
September 3, 1993
Page 4
65 P.S. 5402.
function could influence the outcome of such a
decision.
"Business with which he is associated."
Any business in which the person or a member
of the person's immediate family is a
director, officer, owner, employee or has a
financial interest.
"Contract." An agreement or arrangement
for the acquisition, use or disposal by the
Commonwealth or a political subdivision of
consulting or other services or of supplies,
materials, equipment, land or other personal
or real property. "Contract" shall not mean
an agreement or arrangement between the State
or political subdivision as one party and a
public official or public employee as the
other party, concerning his expense,
reimbursement, salary, wage, retirement or
other benefit, tenure or other matters in
consideration of his current public employment
with the Commonwealth or a political
subdivision.
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
anything of monetary value and no public official /employee shall
solicit or accept anything 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.
In applying the above provisions of the Ethics Law to the
question of your association with Syntonic, it is noted that
Section 3(a) of the Ethics Law does not prohibit public
officials /employees from outside business activities or employment;
however, the public official /employee may not use the authority of
office for the advancement of his own private pecuniary benefit or
that of a business with which he is associated. Pancoe, Opinion
89 -011. A public official /employee must exercise caution so that
his private business activities do not conflict with his public
duties. Crisci, Opinion 89 -013. Thus, a public official /employee
could not perform private business using governmental facilities or
personnel. In particular, the governmental telephones, postage,
staff, equipment, research materials, personnel or any other
Wilson, 93 -594
September 3, 1993
Page 5
property could not be used as a means, in whole or part, to carry
out private business activities. In addition, the public
official /employee could not during government working hours solicit
or promote such business activity. Pancoe, supra. Similarly,
Section 3(a) would expressly prohibit the use of confidential
information received by holding public office/ employment for such
a prohibited private pecuniary benefit.
In the event that your private employer or business has a
matter pending before your governmental body or if you as part of
such official duties must participate, review or pass upon that
matter, a conflict would exist. Miller, Opinion 89 -024. In those
instances, it will be necessary that you be removed from that
process.
In such cases as noted above, Section 3(j) of the Ethics Law
would require not only that you abstain from participation but also
file a written memorandum to that effect with the person recording
the minutes or your supervisor.
In summary, the Ethics Law would require not only that you
abstain from participation but also file a written memorandum to
that effect with the person recording the minutes or you
supervisor.
In summary, the Ethics Law would restrict the following:
1. The use of authority of office to obtain any business in
a private capacity;
2. utilization of confidential information gained through
public position;
3. participating in discussions, reviews, or recommendations
on matters which relate to the business /private employer which may
come before the governmental body and in such cases publicly
announcing the relationship or advising the supervisor as well as
filing a written memorandum as per the requirements of Section 3(j)
of the Ethics Law. Brooks, Opinion 89 -023.
As to your statement that Syntonic currently has contracts
with the Turnpike Commission, Section 3(a) would not prohibit the
continuation of such contracts or the awarding of new contracts;
however, the contracting restrictions as to public
officials /employees must be followed.
Section 3(f) of the Ethics Law provides:
Section 3. Restricted activities.
Wilson, 93 -594
September 3, 1993
Page 6
(f) No public official or public
employee or his spouse or child or any
business in which the person or his spouse or
child is associated shall enter into any
contract valued at $500 or more with the
governmental body with which the public
official or public employee is associated or
any subcontract valued at $500 or more with
any person who has been awarded a contract
with the governmental body with which the
public official or public employee is
associated, unless the contract has been
awarded through an open and public process,
including prior public notice and subsequent
public disclosure of all proposals considered
and contracts awarded. In such a case, the
public official or public employee shall not
have any supervisory or overall responsibility
for the implementation or administration of
the contract. Any contract or subcontract
made in violation of this subsection shall be
voidable by a court of competent jurisdiction
if the suit is commenced within 90 days of the
making of the contract or subcontract.
Section 3(f) has strict requirements whenever a public
official /employee or the business with which he is associated
contracts with the governmental body with which he is associated.
The term "governmental body with which a public official or
public employee is or has been associated" is defined 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.
Under the above quoted definition, it is clear that the
governmental body with which you are associated is the Pennsylvania
Turnpike Commission, in its entirety. Accordingly, under Section
Wilson, 93 -594
September 3, 1993
Page 7
3(f) of the Ethics Law, any contract that you or the business with
which you are associated would negotiate with the governmental body
would have to be awarded through an open and public process
including prior public notice and subsequent public disclosure if
the contract is $500.00 or more as per the requirements of Section
3(f). In addition, Section 3(f) also restricts the award of sub-
contracts. Thus, if the governmental body entered into a contract
with a given individual or entity who in turn sought to enter into
a sub - contract with you, or the business with which you are
associated, such contracting would also be subject to the
requirements of Section 3(f) of the Ethics Law noted above.
Finally, if you or the business with which you are associated
enters into such a contract or sub - contract after complying with
the restrictions of Section 3(f), you would be prohibited from the
implementation, administration or supervision of that contract in
the capacity of a public official /employee. Therefore, in order
for contracting to be allowed under the Ethics Law, strict
compliance with the provisions of Section 3(f) of the Ethics Law as
outlined above must be followed. Unless the restrictions of
Section 3(f) of the Ethics Law are complied with, such contracting
would be prohibited.
The issue of the scope of permissible interaction with
Syntonic and the Pennsylvania Turnpike Commission once you
terminate your position as Special Assistant to the Executive
Director will now be discussed.
Section 3(i) of the Ethics Law provides:
Section 3. Restricted Activities
(i) No former executive -level State
employee may for a period of two years from
the time that he terminates his State
employment be employed by, receive
compensation from, assist or act in a
representative capacity for a business or
corporation that he actively participates in
recruiting to the Commonwealth of Pennsylvania
or that he actively participated in inducing
to open a new plant, facility or branch in the
Commonwealth or that he actively participated
in inducing to expand an existent plant or
facility within the Commonwealth, provided
that the above prohibition shall be invoked
only when the recruitment or inducement is
accomplished by a grant or loan of money or a
promise of a grant or loan of money from the
Commonwealth to the business or corporation
recruited or induced to expand.
Wilson, 93 -594
September 3, 1993
Page 8
As to Section 3(i) of the Ethics Law, you are subject to that
provision of law since you are an executive -level state employee.
However, Section 3(i) would not restrict you from a position of
employment with Syntonic provided you did not actively participate
in recruiting or inducing that company to open a new facility or
branch in the Commonwealth or participate in inducing it to expand
an existing plant or facility that was accomplished by a grant or
loan of money or a promise of a grant or loan of money from the
Commonwealth of Pennsylvania to Syntonic.
The facts do not indicate that you actively participated in
recruiting or inducing Syntonic to open a new facility or branch or
expand through a grant or loan of money or a promise of a grant or
loan of money from the Commonwealth. Conditioned upon the
assumption that there has been no active participation by you in
such recruitment or inducement of Syntonic to open or expand a
facility or branch through a grant or loan of money or a promise of
a grant or loan of money from the Commonwealth of Pennsylvania, you
would not be prohibited from accepting the position of employment
with Syntonic.
In addition to the restrictions of Section 3(i), upon
termination of public service, you would become a "former public
official" 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.
The governmental body with which you are associated has
already been identified above, but will be discussed in further
detail. Then the scope of the prohibitions associated with the
concept and term of "representation" will be reviewed.
In applying the term "governmental body with which a public
official or public employee is or has been associated" to this
issue, the determination that your governmental body is the
Pennsylvania Turnpike Commission, in its entirety, 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
Wilson, 93 -594
September 3, 1993
Page 9
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 the Turnpike Commission, Section 3(g) of the Ethics Law would
apply and restrict representation of persons or new employers vis-
a-vis the Turnpike Commission.
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. 51901, it is clear that the governmental body with which you
are associated is the Pennsylvania Turnpike Commission.
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,
officials or employees to secure for himself or a new employer,
treatment or benefits that may be obtainable only because of his
Wilson, 93 -594
September 3, 1993
Page 10
association with his former governmental body.
In respect to the one year restriction against such
"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.
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
by 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.
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. In Shay, Opinion 91 -012, the Commission held
that Section 3(g) would prohibit 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 though the
invoices pertained to a contract which existed prior to termination
of public service. 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 the Turnpike Commission. However, you may not be identified on
Wilson, 93 -594
September 3, 1993
Page 11
documents submitted to the Turnpike Commission. You may also
counsel any person regarding that person's appearance before the
Turnpike Commission. Once again, however, the activity in this
respect should not be revealed to the Turnpike Commission. Of
course, any ban under the Ethics Law would not prohibit or preclude
the making of general informational inquiries of the Turnpike
Commission 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, 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.
In Confidential Opinion 93 -005, the Commission held that
Section 3(g) precludes a former public official /employee from
providing consulting services to his former governmental body for
a period of one year after termination of service in that the
prohibition against representing a person includes the former
public official /employee representing himself.
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.
Conclusion: As Associate Executive Director, Chief Engineer and
Secretary /Treasurer for the Pennsylvania Turnpike Commission, you
were a public official subject to the provisions of the Ethics Law.
As a Special Assistant to the Executive Director for the Turnpike
Commission, you are a public official /employee subject to the
provisions of the Ethics Law. Section 3(a) of the Ethics Law would
not preclude you from outside employment /business activity subject
to the restrictions and qualifications as noted above. In the
event that the employer /business has matters pending before your
governmental body, then you could not participate in that matter
and the disclosure requirements of Section 3(j) of the Ethics Law
as outlined above must be satisfied.
Section 3(a) of the Ethics Law would not preclude you or a
business with which you are associated from contracting with the
Turnpike Commission, but you could not use the authority of office
Wilson, 93 -594
September 3, 1993
Page 12
to obtain such business and such business activity may not be
conducted using governmental facilities or personnel. Under
Section 3(f) of the Ethics Law any contract or sub - contract between
you or the business with which you are associated and your
governmental body must be awarded through an open and public
process, if valued at $500.00 or more, with prior public notice and
subsequent public disclosure. In addition, if a contract is
awarded, a public official /employee may not have any supervisory or
overall responsibility for the implementation or administration of
the contract.
Upon termination of service with the Turnpike Commission, you
will become a "former public official" subject to Section 3(g) of
the Ethics Law. The former governmental body is the Pennsylvania
Turnpike Commission, in its entirety. The restrictions as to
representation outlined above must be followed. The propriety of
the proposed conduct has only been addressed under the Ethics Law.
You are also considered an executive -level state employee
subject to the provisions of the Ethics Law. Under Section 3(i) of
the Ethics Law, you would not be prohibited from accepting a
position of employment with Syntonic Technology, Inc. based upon
the assumption that you did not actively participate in inducing or
recruiting said company to open or expand a facility or branch
through a grant or loan of money or a promise of a grant or loan of
money from the Commonwealth of Pennsylvania.
Further, when service is 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 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 S13.2(h).
Sincerely,
`7"
Vincent J. Dopko
Chief Counsel