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HomeMy WebLinkAbout95-516 FulginitiJohn J. Fulginiti, P.E. 1201 Nicely Avenue Montoursville, PA 17754 Dear Mr. Fulginiti: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 17, 1995 • 95 -516 Re: Former Public Employee; Section 3(g); Bridge Program Safety Engineer; Civil Engineer IV. This responds to your letter of January 11, 1995, 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 Civil Engineer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: Following your retirement on December 30, 1994 from PennDOT District 3 -0 in Montoursville, you seek an advisory opinion regarding possible employment with a consulting engineering firm located in Williamsport. While at PennDOT District 3 -0, you were a Bridge Program Safety Engineer, Civil Engineer IV, Manager, with duties consisting of the overall responsibility for managing the bridge inspection program in the District for both the state and municipal -owned bridges. In addition your group received permit requests for over - the -road permit vehicles and you formulated the bridge maintenance program for state bridges. The firm in which you are pursuing employment is under contract with several PennDOT Districts performing bridge and highway design as well as performing bridge design and safety inspections for several townships and counties in PennDOT District 2 -0 and 3 -0. You seek an advisory as to the propriety of your performing the following duties with the consulting firm: (1) performing bridge design duties on PennDOT contracts, local contracts that involve state and federal funding, and with the Pennsylvania DER Bureau of Forestry; (2) performing local bridge safety inspections or managing Fulginiti, John J., 95 -516 February 17, 1995 Page 2 that division of work within the firm; • (3) performing bridge rehabilitation design for local municipalities; (4) providing bridge repair and preventative maintenance training techniques to municipalities; and (5) interacting, as part of the first two inquiries, with PennDOT employees during review of work completed, signing and sealing reports, drawings and /or having your name appear on other items of correspondence such as billings. Discussion: As a Civil Engineer for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you were 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 became 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: Fulginiti, John J., 95 -516 February 17, 1995 Page 3 Section 2. Definitions. 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 • "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 have been associated upon termination of public service will be PennDOT in its entirety, including but not limited to District 3 -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 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: Fulginiti, John J., 95 -516 February 17, 1995 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 3 -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; Fulginiti, John J., 95 -516 February 17, 1995 Page 5 Section 2. Definitions. • 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: "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 Fulginiti, John J., 95 -516 February 17, 1995 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. As to the specific questions you posed, you may not represent a person including your new employer, before PennDOT but you may represent persons before DER or a municipality since those entities are not your governmental body. As to all of your inquiries, any interaction with PennDOT employees as to review of work completed, your signing and sealing reports, drawings, or having your name appear on other items of correspondence, such as billings which would be presented or received by PennDOT, is restricted representation and prohibited under the Ethics Law. It is not the project, such as safety bridge inspections, bridge rehabilitation designs, bridge repair, preventative maintenance training techniques, etc., but rather your actions as to PennDOT, whether interaction on your part or the submission of materials to PennDOT with your name or with you as a contact person or as to billing or any other action which would constitute representation as discussed above, that is prohibited by Section 3(g) of the Ethics Law. Such issues involving a former PennDOT engineer were considered by the full Commission in Shav, supra. The Commission held in the cited case that the submission of billing sheets which included the former public employee's hours worked to be prohibited representation under Section 3(g) of the Ethics Law. 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 Civil Engineer for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you were considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDOT, you 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 Fulginiti, John J., 95 -516 February 17, 1995 Page 7 such. • 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 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 Dopko Chief Counsel