HomeMy WebLinkAbout96-600 BergmaierJames J. Bergmaier
440 Windsor Drive
Harleysville, PA 19438
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 22, 1996
96 -600
Re: Former Public Employee; Section 3(g); Department of Transportation;
Community Relations Coordinator.
Dear Mr. Bergmaier:
This responds to your letter of September 23, 1996, 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 Community Relations Coordinator following
termination of service with the Commonwealth of Pennsylvania, Department of
Transportation.
Facts: For more than 12 years you worked for the Department of Transportation
( "PennDOT ") as a Community Relations Coordinator (CRC) in Engineering Districts 5
and 6. You state that you liked your job and had no intention of leaving, but were
terminated from that position effective March 1, 1996.
You have been unable to find an equivalent full -time position in your field since
your termination. However, you have been offered the opportunity to join a team of
consultants who are pursuing a contract with PennDOT for improvements to a major
highway in Philadelphia. Your role on that team would be that of a sub - consultant for
public and media relations, working for the prime consultant and having no direct
contact with PennDOT. You would operate under a fictitiously -named sole
proprietorship.
You request an advisory as to any restrictions under the Ethics Law as to former
public employees who are terminated without cause.
Copies of your job description and job classification specifications, and an
organizational chart, have been obtained from PennDOT, which documents are
incorporated herein by reference.
Beramaier, 96 -600
October 22, 1996
Page 2
Discussion: In the former capacity as a Community Relations Coordinator for
the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you
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, you became a "former public
employee" subject to Section 3(g) of the Public Official and Employee Ethics Law.
You are initially advised that the fact that a termination is involuntary, either
with or without cause, is of no legal significance in the application of Section 3(g).
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:
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:
Beramaier, 96 -600
October 22, 1996
Page 3
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 you have been
associated upon termination of public service is•PennDOT in its entirety, including but
not limited to Engineering Districts 5 and 6. 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
Engineering Districts 5 and 6.
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.
Bergmaier, 96 -600
October 22, 1996
Page 4
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;
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 /Webster, Opinion 95 -01 1.
Therefore, within the first year after termination of service, you should not engage in
any of the prohibited activities 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
Bergmaier, 96 -600
October 22, 1996
Page 5
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.
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: In the former capacity as a Community Relations Coordinator for
the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you
would be 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 Engineering Districts 5 and 6. 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 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
Bergmaier, 96 -600
October 22, 1996
Page 6
erely,
Vincent J. opko
the Commission within thirty (30) days may result in the dismissal of
the appeal.
Chief Counsel