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HomeMy WebLinkAbout94-608 CookSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1994 George Donald Cook P.O. Box 232 Dauphin, PA 17018 -0232 94 -608 Re: Conflict, Public Official /Employee, Private Employment or Business, Former Public Employee, Section 3(g), PennDOT, Senior Highway Designer, Mellow Bill, 95 -Day Return Provision. Dear Mr. Cook: This responds to your letter of August 29, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether a retired Senior Highway Designer working for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT ") pursuant to a 95 -day return provision as allowed by the Mellow Bill 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, and whether the Public Official and Employee Ethics Law presents any restrictions upon employment of the Senior Highway Designer following termination of such service with PennDOT. Facts: You served in a contract proposal review and specification writer position as a Senior Highway Designer in the Specification and Proposal Review Section, Contract Management Division, of PennDOT's Bureau of Design at the central office in Harrisburg, until retiring on December 20, 1991 under the Mellow Bill. Subsequently, you were asked by PennDOT on three separate occasions to return as an employee under the 95 -day return provision in order to assist the Bureau of Design in meeting its contract letting goals for fiscal years 1991/92, 1992/93 and 1993/94. The 95 -day periods were strategically selected time frames, conducive to meeting letting schedules by the June 30 fiscal year closeouts. You have posed numerous specific inquiries. You ask whether the Ethics Law would prohibit a "public employee" from engaging in outside employment or business activities. You ask whether a Cook, George Donald, 94 -608 September 26, 1994 Page 2 retired Senior Highway Designer working under the 95 -day return provision per the Mellow Bill in the Contracts Management Division, Bureau of Design of PennDOT is prohibited or restricted by the Ethics Law from working with or being employed by or associated with a business /person in the private sector in addition to public service. You ask for advice as to any obligations you may have as to filing written memoranda as required by Section 3(j) of the Ethics Law. You ask whether such businesses that you would be associated with may engage in contractual agreements with PennDOT. You ask what restrictions the Ethics Law would impose upon your employment following termination of service with PennDOT following a 95 -day return provision as allowed by the Mellow Bill. Finally, you ask whether you may secure technical information from PennDOT and provide assistance in the preparation of engineering drawings, specifications, calculations and similar documents presented or submitted to PennDOT while engaged in private business employment. You have submitted a copy of your job classification specifications and an organizational chart, which documents are incorporated herein by reference. It is noted that the Senior Highway Designer does advanced professional highway design work in designing highway projects. An employee in this class independently prepares or reviews complete sets of plans for complex highway projects. The work may include lead work over lower level technicians and designers. Your assignments would be performed independently and reviewed upon completion by a managerial supervisor. Among the numerous examples of your work would be designing the most complex highway projects; developing complete sets of design plans for such projects, preparing plans and specifications, and computing cost estimates; reviewing certain statewide contract proposals; reviewing complex design plans prepared by consultants for technical standards and adherence to applicable specifications; acting as liaison contact with consultants; coordinating department and outside agency activities relative to highway planning and location; administering and coordinating a specialized engineering district function such as planning and programming, grade crossing, transportation systems management, pavement evaluation, and safety design liaison; preparing an engineering district's project proposal and estimate to include special provisions and indicating specifications, quantities, and descriptive material as indicated in related specifications. It is noted that your analysis of your level of responsibility in the Bureau of Design appears to contradict your job classification specifications, as well as your acknowledgement noted below that you would be a "public employee" as set forth in the Ethics Law. You state that your responsibilities did not include activities requiring official actions of a decision making nature with regard to contracting, procurement, administering or Cook, George Donald, 94 -608 September 26, 1994 Page 3 monitoring grants, leasing, developing regulations or financial management. You also state that you were not in any way delegated with authority for granting official approvals, consultant selection or official actions in shaping PennDOT policy decisions. Therefore you feel that your actions would involve a de minimis impact. You state that you took no action of a nonministerial nature. You have proffered your own analysis of the application of the Ethics Law to your situation, which is summarized as follows. You proffer your view that the Ethics Law does not prohibit a public employee from engaging in employment with outside business activities. You acknowledge that if you would be asked by PennDOT to serve during any future 95 -day period, you would most likely be considered a "public employee" as defined by the Ethics Law. You state that if your private employer or business would require a decision from PennDOT where you would be participating in official duties such as review of project submission whereby a conflict would result, you would be removed from that process. You note Section 3 (f) as applying to contracts between a business with which you would be associated and PennDOT. Upon any termination of service with PennDOT, you state that it appears that you would be subject to the restrictions of Section 3(g) of the Ethics Law but not those of Section 3(i). You proffer that the conflict of interest law primarily focuses on financial conflicts and violations of public trust rather than engineering or technical support. You propose a firm commitment to any restrictions imposed by the Ethics Commission pursuant to your request in order to act in good faith and avoid controversy. Based upon all of the above you request an advisory from the State Ethics Commission. Discussion: As a Senior Highway Designer for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you would 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. §402; 51 Pa. Code §11.1. This conclusion is based upon the job classification specifications, 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 minimis on the interests of another person. Thus, at any given time that you are serving in the position of Senior Highway Designer -- even if pursuant to the 95 -day return provision allowed by the Mellow Bill -- you would be a "public employee" subject to the Ethics Law. Cook, George Donald, 94 -608 September 26, 1994 Page 4 This advisory shall first address your inquiry with regard to the restrictions of the Ethics Law applicable to you during your service as a public employee, and shall subsequently address the restrictions applicable to you at such times as you are a former "public employee." 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. "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. Cook, George Donald, 94 -608 September 26, 1994 Page 5 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 instant matter, 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 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 PennDOT 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 your 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 Cook, George Donald, 94 -608 September 26, 1994 Page 6 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. Having set forth the above restrictions which would apply to you with regard to private employment at such times that you would serve as a public employee, the restrictions of the Ethics Law which apply to former public employees shall now be addressed. 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 have been 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, the governmental body with which you have been associated upon termination of public service would be PennDOT in its entirety, including but not limited to the Specification and Proposal Review Section, the Contracts Management Division and /or the Bureau of Design. The above is based upon the language of the Ethics Law, Cook, George Donald, 94 -608 September 26, 1994 Page 7 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 in its entirety, including but not limited to the Specification and Proposal Review Section, the Contract Management Division and /or the Bureau of Design. 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 have been associated is PennDOT in its entirety, including but not limited to the Specification and Proposal Review Section, the Contract Management Division and /or the Bureau of Design. 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 Cook, George Donald, 94 -608 September 26, 1994 Page 8 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 governmental body. In Shav, Opinion 91 -012, the Commission held that Section 3(g) would prohibit the inclusion of the name of a Cook, George Donald, 94 -608 September 26, 1994 Page 9 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 PennDOT. However, you may not be identified on documents submitted to PennDOT. 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. 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. It is noted that each time that you return to perform the duties of a Senior Highway Designer for PennDOT - even if it is pursuant to the 95 -day return provision allowed by the Mellow Bill -- you will become a "public employee" subject to the Ethics Law, and each time that you terminate such employment with PennDOT, the one year period of applicability of Section 3(g) will commence to run anew as to you. See, Solomon, Advice of Counsel No. 91- 576 -S2. All of your specific inquiries but one have been addressed above. The remaining question which you have posed is whether your private employer may engage in a contractual agreement with PennDOT. During such times as you are employed as a Senior Highway Cook, George Donald, 94 -608 September 26, 1994 Page 10 Designer for PennDOT, the restrictions of Section 3(f) of the Ethics Law must be observed for such contracting. Section 3(f) of the Ethics Law provides as follows: Section 3. Restricted activities (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. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of the law would require that an open and public process must be used in all situations where a public official /employee is otherwise appropriately contracting with his own governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor/ applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals Cook, George Donald, 94 -608 September 26, 1994 Page 11 considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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 Law 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 a retired Senior Highway Designer for the Commonwealth of Pennsylvania Department of Transportation ( PennDOT) serving in said capacity pursuant to a 95 -day return provision as allowed by the Mellow Bill, you would be a public 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 private employer /business has matters pending before PennDOT, then you could not participate in such matters and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. During such times as you are employed by PennDOT as a Senior Highway Designer, contracting between your private employer and PennDOT must conform to the restrictions of Section 3.(f) as set forth above. In each instance of termination of service with PennDOT, you would become a "former public employee" subject to a one -year period of applicability of Section 3(g) of the Ethics Law. The former governmental body would be PennDOT in its entirety, including but not limited to the Specification and Proposal Review Section, the Contract Management Division and /or the Bureau of Design. 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, in each instance that service would 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 Cook, George Donald, 94 -608 September 26, 1994 Page 12 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 appeal the .Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa .Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAS transmission (717 -787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Vincent J Dopko Chief Counsel