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HomeMy WebLinkAbout95-635 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 21, 1995 95 -635 Re: Former Public Employee; Section 3(g); PennDOT; Association. This responds to your letter of November 21, 1995 in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a former public employee with A following termination of service with Pennsylvania Department of Transportation ( PennDOT). Facts: Your office represents A and you are writing regarding C, a former PennDOT employee who has been hired by A. C began working for A on October 23, 1995. C had previously been employed by PennDOT as a D. You enclosed a copy of the job description for that position which is incorporated herein by reference. A is a trade association which promotes B. They provide technical assistance and present the industry's position upon request. You enclosed a copy of A's by -laws, as well as the job description for executive vice president (the position which C holds), which are incorporated herein by reference. Your first specific inquiry is whether C is considered a public employee as defined under the Ethics Law. You argue that although C is an engineer, he does not appear to satisfy the requirements set forth in the regulations regarding preparation of final recommendations or authority to veto or initiate the same. If C is determined to be a public employee as defined under the Ethics Law, you seek advice regarding the interaction permitted between C, as an A employee, and PennDOT. Specifically, you inquire as to: 95 -635 December 21, 1995 Page 2 (1) The extent to which C may participate in industry- wide conferences or seminars sponsored by A or some other entity where members of PennDOT might be in attendance, along with individuals representing Departments of Transportation in other states; (2) The extent that C's name may be used, for example as an author, in publications of A which are mailed to various departments of transportation and others which may include PennDOT; (3) Any limits on C doing the following: attending /participating at PennDOT meetings, conferences, etc.; serving as an industry representative on PennDOT task forces or committees; visiting PennDOT paving projects; sending and receiving correspondence to and from PennDOT; serving as a point -of- contact for industry /PennDOT issues; and making phone calls to PennDOT. You note that the A has been careful so far to prevent any direct contact between C and PennDOT employees. Discussion: In the former capacity as a D for PennDOT, C would be 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, C 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 C was associated while working with PennDOT must be 95 -635 December 21, 1995 Page 3 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. 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. The Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. §1901. Based upon the above, the governmental body with which C was associated upon termination of public service would be the Department of Transportation. 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 95 -635 December 21, 1995 Page 4 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. 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; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 95 -635 December 21, 1995 Page 5 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. Section 3(g) would also prohibit in general 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 pertain to a contract which existed prior to termination of public service. Shay, Opinion 91 -012. However, in the event of work performed on a contract already awarded and not involving the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams /Web ter, Opinion 95 -011. Therefore, within the first year after termination of service, C should not engage in any of the prohibited activities outlined above. C may assist in the preparation of any documents presented to PennDOT. However, C may not be identified on documents submitted to PennDOT. C 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 applying the definition of "Person" quoted above, the Commission has held that the term includes a former public employee representing himself in providing consulting services to his former governmental body. Confidential Opinion 93 -005. Further, the term "Person" includes a new government employer which is represented by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. 95 -635 December 21, 1995 Page 6 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. The specific questions you pose shall now be addressed. As to the first inquiry, C could attend conferences /seminars sponsored by the A or some other entity where members of PennDOT or from departments in other states are in attendance since such action would not be representation before the former governmental body. This response factually assumes that such conferences /seminars are not sponsored or held at PennDOT. As to the second inquiry, a definitive answer cannot be supplied as to the use of C's name as author in A publications. If the publication is a position statement or advocates a point of view of the A, the inclusion of C's name would be prohibited as to such representational activities. Contrariwise, if C's name would be included in a telephone directory, or roster listing, where the publication would not fall within the definition of "represent ", then such inclusion would be permissible. As to your third inquiry, the restrictions apply to all of PennDOT as noted above. As to your final inquiry, C could attend PennDOT meetings /conferences, and functions; however, if C's role is beyond that of a general observer so that he participates and advocates positions, not as a member of the general public but as a representative of the A, such representation would be prohibited. Serving as an industry representative in a PennDOT task force would be prohibited because C would be representing his new employer before his former governmental body. As to visiting PennDOT paving projects, a definitive answer cannot be given. If the visitation would be similar to the public visiting a site or a perfunctory ribbon cutting, such activity would be permissible under the Ethics Law. However, if the visitation is for the purpose of representing the A by advocating for its position or a certain procedure, such activity would be prohibited. As to sending /receiving correspondence to PennDOT, serving as a point -of- contact, or making phone calls, such would be prohibited to the extent that the purpose and substance of such contacts constituted a representational activity as defined 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 95 -635 December 21, 1995 Page 7 than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: In the former capacity as a D, C would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDOT, C would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Department of Transportation. 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 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. cerely, Vincent J`. Dopko Chief Counsel