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HomeMy WebLinkAbout94-633 GallagherSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 2, 1994 John A. Gallagher, P.E. Assistant District Engineer, Construction Commonwealth of Pennsylvania Department of Transportation 200 Radnor- Chester Road St. Davids, PA 19087 94 -633 Re: Former Public Employee; Section 3(g); Assistant District Engineer- Construction; Highway District Engineer I; PennDOT. Dear Mr. Gallagher: This responds to your letters of October 31, 1994, and November 7, 1994 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 District Engineer- Construction classified as a Highway District Engineer I, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: You are presently employed by the Pennsylvania Department of Transportation (PennDOT) as an Assistant District Engineer - Construction in PennDOT's St. Davids Office, District 6 -0. You intend to retire on December 30, 1994 and you plan to go to work for a consulting firm in the Philadelphia area. For the last fifteen years, you have worked exclusively in the St. Davids District 6 -0 Office and you were never assigned to any other District Office or to the Central Office in Harrisburg. You request an advisory from the State Ethics Commission concerning the applicability of the Ethics Law to your plans. You state that it is your understanding that subsequent to December 30, 1994, you will be considered a "former public employee" under the law and that you may not represent anyone on matters with PennDOT in the St. Davids District for a period of one year. You ask whether this restriction applies to other PennDOT districts or to the Central Office. You ask whether you would be permitted to perform work for municipalities if they are using federal or state Gallagher, John A., 94 -633 December 2, 1994 Page 2 transportation funds. Finally, you ask whether, if you were to work for a consultant and the consultant had inspection personnel working for PennDOT in various districts other than District 6 -0, it would be permissible for you, in your new job responsibilities, to monitor these inspectors working for PennDOT if you did not visit them at the project site but met with them at a neutral site. You state that your time would not be charged to any PennDOT project for the initial one -year period. You have submitted copies of your job description and job classification /specifications which documents are incorporated herein by reference. It is noted that you are classified as a Highway District Engineer I. Discussion: As an Assistant District Engineer- Construction classified as a Highway District Engineer I for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are 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 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 minimis 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 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: Gallagher, John A., 94 -633 December 2, 1994 Page 3 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 necessary conclusion is that the governmental body with which you will have been associated upon termination of public service will be PennDOT in its entirety, including but not limited to District 6 -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 in its entirety, including but not limited to District 6 -0. 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 Gallagher, John A., 94 -633 December 2, 1994 Page 4 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 District 6 -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 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 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; Gallagher, John A., 94 -633 December 2, 1994 Page 5 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 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. Furthermore, Sections 3(b) and 3(c) of the Ethics Law provide Gallagher, John A., 94 -633 December 2, 1994 Page 6 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. In applying the above principles to the three specific questions which_you have raised, as noted above, the restrictions of Section 3(g) would apply with regard to PennDOT in its entirety, including but not limited to all PennDOT districts and the Central Office — not just District 6 -0. Secondly, Section 3(a) of the Ethics Law would not restrict you from working for a municipality simply because it is using federal or state transportation funds. Funding sources have no bearing upon the applicability of the restrictions of Section 3(g). Finally, as to your third specific inquiry, it is not clear from the facts which you have submitted whether the inspection personnel are working for the consulting firm on PennDOT projects or are actually working for PennDOT. This Advice shall assume and shall be expressly conditioned upon the assumption that these inspection personnel are working for the consultant and are not working for PennDOT. Based upon this assumption, Section 3(g) would not prohibit you from monitoring these inspectors simply because they are working on PennDOT projects. However, in performing your job duties, you could not engage in prohibited representation of the consulting firm before PennDOT. Thus, for example, it would indeed be advisable to meet with your employer's inspectors at a location and in a manner which would not indicate to PennDOT personnel your employment by the consulting firm and /or your involvement in any project. Finally, it is parenthetically noted that your assurance that your time would not be charged to any PennDOT project for the initial one -year period would not be necessitated by the Ethics Law. The Ethics Law would not preclude your . employer from invoicing your former governmental body for your services. Rather, the Ethics Law would preclude any indication on such invoice of your identity. In Shav, supra, this Commission did not preclude Mr. Shay's new employer from billing for his time, but rather precluded his employer from including his name on the invoice to PennDOT. To the extent PennDOT may require the inclusion of names on invoices, such a dilemma results from those requirements rather than from the requirements of the Ethics Law. Lastly, the propriety of the proposed conduct has only been Gallagher, John A., 94 -633 December 2, 1994 Page 7 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 District Engineer- Construction classified as a Highway District Engineer I for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are 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 would be PennDOT in its entirety, including but not limited to District 6 -0. 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. 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 actuallv received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX 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 . Dop'ko Chief Counsel