Loading...
HomeMy WebLinkAbout94-634 LesterStephen B. Lester, P.E. 1907 Church Road Flourtown, PA 19031 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 5, 1994 94 -634 Re: Former Public Employee; Section 3(g); Highway District Engineer; PennDOT. Dear Mr. Lester: This responds to your letter of October 31, 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 a Highway District Engineer, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: You are presently employed by the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) as a Highway District Engineer in the St. Davids Office (District 6 -0). You intend to retire from your position on December 30, 1994 and accept employment with Urban Engineers, an engineering consulting firm in Philadelphia. Throughout your thirty year career with PennDOT, you have always worked in the St. Davids District Office and 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: (1) Whether this restriction applies to other PennDOT Districts or to the Central Office; (2) Whether you would be allowed to perform work for the Attorney General's Office in defense of PennDOT on torts cases in the St. Davids District or Lester, Stephen B., 94 -634 December 5, 1994 Page 2 elsewhere in the state; (3) Whether you would be allowed to represent yourself at ribbon cuttings on completed PennDOT construction projects; (4) Whether you would be permitted to perform work for municipalities if they are using federal or state highway funds; and (5) Whether you would be permitted to represent yourself in testimony in support of highway projects at PennDOT or Delaware Regional Planning Commission public hearings? Copies of your job description and job classification/ specifications have been obtained and are incorporated herein by reference. Based upon all of the above you request an advisory from the State Ethics Commission. Discussion: As a Highway District Engineer 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 Lester, Stephen B., 94 -634 December 5, 1994 Page 3 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 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 Lester, Stephen B., 94 -634 December 5, 1994 Page 4 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 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 Lester, Stephen B., 94-634 December 5, 1994 Page 5 Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 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 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: Lester, Stephen B., 94 -634 December 5, 1994 Page 6 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 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 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. Second, you have presented a unique question as to whether you would be allowed to perform work for the Attorney General's Office in defense of PennDOT on torts cases in the St. Davids District or elsewhere in the state. It is noted that you would be performing such work for the Attorney General's office, presumably in the capacity of a factual and /or expert witness based upon your employment with PennDOT, and therefore the necessary conclusion is that this situation would not fit within the intended restrictions of Section 3(g) and would be permissible. Third, you ask whether you would be allowed to represent yourself at ribbon cuttings on completed PennDOT construction projects. It is difficult to imagine how this would factually occur unless you would be merely an observer among a crowd of observers from the general public. Clearly, the Ethics Law would not preclude your attendance at a public event as a member of the general public. However, Section 3(g) would preclude your attendance at such an event as a representative of Urban Engineers. Fourth, you ask whether you would be permitted to perform work for municipalities if they are using federal or state highway funds. 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, you ask whether you would be permitted to represent Lester, Stephen B., 94 -634 December 5, 1994 Page 7 yourself in testimony in support of Highway Projects at PennDOT or at Delaware Regional Planning Commission public hearings. Again, this factual scenario would be difficult to imagine unless you were merely present in the capacity of a member of the general public. The Ethics Law would not restrict you from so acting in the capacity of a member of the general public, but it would clearly restrict such conduct as a representative for Urban Engineers on any matter before PennDOT. 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 a Highway District Engineer 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. 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 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 Lester, Stephen 8., 94 -634 December 5, 1994 Page 8 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 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. ncerely, V ncent . Dopko Chief Counsel