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HomeMy WebLinkAbout93-607 StidingerDear Mr. Stidinger: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 12, 1993 Dennis M. Stidinger, P.E., President The EADS Group General Engineering Division Greenville Avenue Extension P.O. Box 684 Clarion, PA 16214 93 -607 Re: Former Public Employee; Section 3(g); Assistant Environmental Manager; District 11 -0; Department of Transportation. This responds to your letter of September 24, 1993, 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 Environmental Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: As President of The FADS Group (EADS), you are requesting advice from the State Ethics Commission regarding one of your employees. On September 13, 1993, FADS hired Derwood B. Davis, Jr. (Davis) for the position of Environmental Specialist. Davis had been previously employed by the Department of Transportation (PennDOT) as an Assistant Environmental Manager for District 11 -0. Your firm provides consulting engineering services to federal, state and local governments and also to private industry. You indicate that you provide engineering services, including environmental services, to PennDOT. You have reviewed the Ethics Law as it relates to restricted activities of former public employees. You understand that Davis cannot directly represent EADS in marketing your services to PennDOT for one year, nor can Davis serve as a lead project manager in direct contact with PennDOT. Further, you believe that Davis' name and qualifications could not be utilized in proposals submitted to PennDOT. However, you need clarification as to whether you could have Davis provide Stidinger, 93 -607 October 12, 1993 Page 2 technical services on PennDOT projects during the one -year restricted period and then invoice PennDOT for such services. Accordingly, you request an advisory from this Commission. Discussion: As an Assistant Environmental Manager for PennDOT, Davis was 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. 5402; 51 Pa. Code S11.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power existed 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 was greater than de minimis on the interests of another person. of public service, Davis became to Section 3(g) of the Public Section 3(g) of the Ethics Act Consequently, upon termination a "former public employee" subject Official and Employee Ethics Law. 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 Davis was 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. Stidinger, 93 -607 October 12, 1993 Page 3 In applying the above definition to the instant matter, it must be concluded that the governmental body with which Davis was associated upon termination of public service would be PennDOT in its entirety, 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 restricted not merely 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 restricted not merely to that particular senator but to the entire Senate. Accordingly, 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, in its entirety. 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 Davis was associated is PennDOT in its entirety, 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 Stidinger, 93 -607 October 12, 1993 Page 4 type of employment in which a person may engage following departure from his 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 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 Stidinger, 93 -607 October 12, 1993 Page 5 governmental body. Therefore, within the first year after termination of service, Davis may not engage in the type of activity outlined above. As to the specific inquiry regarding Davis' name appearing on invoices submitted to PennDOT, in Shav, 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. Specifically, the issue in Shay was whether restrictions of Section 3(g) applied where the name of the former public employee would appear on invoices submitted to PennDOT, his former governmental body. It was asserted that the name on an invoice was merely a line item of charge like any other cost and did not indicate that the former public employee even prepared the invoice. The Commission, however, held that the proposed inclusion of the former public employee's name on invoices submitted to PennDOT would fit within the definition of "represent" and would be prohibited by the Ethics Law. The key factor was that the involvement of the former public employee on behalf of the new employer was being made known to the former governmental body. The Commission further held that if an invoice were challenged, it would be possible that the former public employee would become a participant in the resolution of the dispute by explaining or testifying on behalf of the new employer. Such activity would also constitute representation. Thus, the specific prohibitions of Section 3(g) of the Ethics Law, as well as this Commission's interpretations of Section 3(g), would preclude the inclusion of Davis' name on invoices submitted to PennDOT by EADS. However, Davis may assist in the preparation of any documents presented to PennDOT, but he may not be identified on documents submitted to PennDOT. Davis may also counsel any person regarding that person's appearance before PennDOT, but again, 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. 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, Stidinger, 93 -607 October 12, 1993 Page 6 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. Further, 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 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 been 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 Assistant Environmental Manager for the Commonwealth of Pennsylvania, Department of Transportation, Davis was considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDOT, he became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is PennDOT in its entirety, including but not limited to District 11 -0. The restrictions as to representation outlined above must be followed. Specifically, the restrictions would prohibit the inclusion of Davis' name on invoices submitted by The EADS Group to PennDOT, Davis' former governmental body. These restrictions are applicable for a period of one year after termination of service with PennDOT. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, since service has been 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 Stidinger, 93-607 October 12, 1993 Page 7 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. Anv such appeal must be in writincr and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 513.2(111. Sincerely, Vincent . Dopko Chief Counsel