HomeMy WebLinkAbout95-607 WebsterRandall K. Webster, P.E.
RR #1, Box 473
Montoursville, PA 17754
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 12, 1995
95 -607
Re: Former Public Employee; Section 3(g); PennDot, Civil Engineer.
Dear Mr. Webster:
This responds to your letter of August 28, 1995, in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon the employment of a highway design
engineer following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation (PennDot).
Facts: You are currently employed with PennDot in District 3 -0
which covers nine (9) counties: Bradford, Columbia, Lycoming,
Montour, Northumberland, Snyder, Sullivan, Tioga and Union. You
have been a highway design engineer with the District for the past
5 1/2 years since graduating from college. Your current job title
is Civil Engineer (Transportation).
You have been discussing employment opportunities with an
engineering consultant in the Williamsport area that has done
engineering work for municipalities and PennDot. Many projects
have utilized funds from liquid fuel funds, federal programs, and
various state and local programs. This firm currently has
October 12, 1995
Page 2
engineering agreements with PennDot in District 2 -0 (Clearfield),
3 -0 (Montoursville), 4 -0 (Dunmore), 5 -0 (Allentown) and 9 -0
(Hollidaysburg) and offers services to other state and federal
agencies.
Your current duties with PennDot involve highway design under
the direct supervision of a highway design squad leader who
controls and has responsibility for your work. At no time were
you involved with review of consultant work or selection of
consultants that work with PennDot.
You request guidance on your activities with this firm as a
highway design engineer. You ask whether you may offer your
services to PennDot in other Districts outside of District 3 -0 and
the limitations in District 3 -0. You inquire as to limitations
that would be imposed on your working with municipalities that
would utilize Federal Highway funds, State funds or liquid /fuel
funds in District 3 -0 or outside District 3 -0. Lastly you inquire
as to whether there are limitations on offering your services to
other State, Federal or Local agencies in District 3 -0 or outside
District 3 -0.
Discussion: As a Civil Engineer for 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
October 12, 1995
Page 3
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 are 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
are 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
October 12, 1995
Page 4
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 3 -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
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
are 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
October 12, 1995
Page 5
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 Popovicli, 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;
October 12, 1995
Page 6
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 Shall, 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
October 12, 1995
Page 7
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 response to the specific questions you pose, you may not
market or offer services to PennDot within or outside of District
3 -0 since such would constitute representation before your former
governmental body which is prohibited by Section 3 (g) of the
Ethics Law. You would not be prohibited from working with
municipalities that would utilize federal /state funds within or
outside of District 3 -0 provided that in performing such services
no written materials containing your name or prohibited appearences
would occur as to PennDot. The answer would be the same as to
services to other state, federal or local agencies.
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 PennDot you are considered a
"public employee" as defined in the Ethics Law. Upon termination
of service with PennDot, you would become /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 Distict 3 -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.
October 12, 1995
Page 8
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 received at the Commission within thirty (30)
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 thirty (30) days
may result in the dismissal of the appeal.
Vincent J`Dopko
Chief Counsel