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HomeMy WebLinkAbout94-651 PogashDear Mr. Pogash: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 22, 1994 William J. Pogash Associate Director of Special Studies Department of Transportation Room 905, Transportation and Safety Building Harrisburg, PA 17120 94 -651 Re: Former Public Employee; Section 3(g); PennDOT; Video Producer. This responds to your letter of December 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 a Video Producer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: Robert Kelly is a recently retired employee of PennDOT and is seeking an advisory opinion relative to the program with which he will be working which is a PennDOT sponsored program. Kelly was employed by PennDOT as a Video Producer in the Bureau of Personnel - Training Division. The Program, the Local Technical Assistance Program (LTAP), is federally funded and administered by your office at PennDOT; however, the program is run through a research agreement between PennDOT and Penn State University (PSU). Kelly will be working as a consultant to PSU and would be paid directly by PSU as a media coordinator. Kelly will have an additional duty of working through Commonwealth Media Services (CMS) to schedule video editing and copying for the LTAP Program. Kelly played no part in either the negotiation or execution of the Agreement with PSU which seeks to hire Kelly as a consultant given PSU's knowledge and satisfaction with Kelly's past work product. You seek approval for Kelly to be given authorization to work on the project if permissible under the Ethics Law and regulations. Discussion: As a Video Producer for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), Kelly is considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Pogash, William J., 94 -651 December 22, 1994 Page 2 Consequently, upon termination a "former public employee" subject Official and Employee Ethics Law. provides that: Regulations of this Commission. 65 P.S. 5402; 51 Pa. Code 511.1. 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. of public service, Kelly became to Section 3(g) of the Public Section 3(g) of the Ethics Act 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 Kelly has 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 Kelly has been associated upon termination of public service will be PennDOT in its entirety, including but not limited to PennDOT. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, Pogash, William J., 94 -651 December 22, 1994 Page 3 291) 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 PennDOT. 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 Kelly has been associated is PennDOT in its entirety, including but not limited to PennDOT. 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 Pogash, William J., 94 -651 December 22, 1994 Page 4 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; 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 Pogash, William J., 94 -651 December 22, 1994 Page 5 termination of service, Kelly should not engage in the type of activity outlined above. Kelly may assist in the preparation of any documents presented to PennDOT. However, Kelly may not be identified on documents submitted to PennDOT. Kelly 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 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. As to your specific inquiry concerning Kelly working as a consultant for PSU, the Ethics Law would not prohibit such a contractual arrangement in that PSU is not the former governmental body of Kelly. In addition, assuming that CMS is a separate governmental body from PennDOT, the Ethics Law would likewise impose no prohibition as to Kelly working with CMS. However, the Ethics Law would prohibit Kelly from any type of representation before his former governmental body, PennDOT, as noted above. In Pogash, William J., 94 -651 December 22, 1994 Page 6 this regard, see Carlton, Advice 91 -564 wherein it was determined that the Director of Communications and Special Assistant to the Labor and Industry Secretary was prohibited, after termination of service, from contracting to complete a video production that he was making for Labor and Industry prior to his termination of service. However, in this case, it would appear that Kelly would be contracting with PSU and working with CMS which is not prohibited as long as Kelly restricts his conduct as to PennDOT within the parameters as noted above. 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 Video Producer for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), Kelly is considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDOT, Kelly 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 PennDOT. 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 actually Pogash, William J., 94 -651 December 22, 1994 Page 7 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 PAS 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. P 711/6 ko Chief Counsel