HomeMy WebLinkAbout96-618 WeaverRoy W. Weaver
R.R. 2
Box 606
Hughesville, PA 17737 -9511
Dear Mr. Weaver:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 17, 1996
96 -618
Re: Former Public Employee; Section 3(g); PennDOT; Municipal Services Specialist.
This responds to your letter of November 12, 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 Municipal Services Specialist following termination
of service with the Commonwealth of Pennsylvania, Department of Transportation.
Facts: You have been employed by the Pennsylvania Department of
Transportation (PennDOT) in District 3 -0 for over 31 years, having held various
positions, none of which have been supervisory or management positions. Your
current job title, which you have held for the last 5 years, is Municipal Services
Specialist.
Your duties as Municipal Services Specialist include meeting with municipal
officials to discuss proposed projects and provide technical advice in respect to general
considerations, intergovernmental coordination and construction problems; reviewing
general maintenance practices and recommending various construction materials to be
used on municipal projects; and ensuring that the municipalities are using the state
liquid fuel funds properly and are in compliance with PennDOT specifications and
regulations. You work within an assigned geographical area which is Columbia
County, Montour County and Northumberland County. Your duties with PennDOT are
under the direct supervision of a Municipal Services Supervisor who has control over
the responsibilities of your work.
You have been discussing employment opportunities as a highway designer with
an engineering consulting firm in the Williamsport area. This firm has done engineering
work throughout Pennsylvania and many of these projects have utilized funds from
various federal, state and local programs. This company currently has engineering
Weaver, 96 -618
December 17, 1996
Page 2
agreements with PennDOT in various districts and they also offer services to other
state and federal agencies.
You state that at no time have you been involved with the review or selection
of consultants that work with the Department.
You seek guidance on your proposed activities with this consulting firm as a
highway designer. Your specific inquiries are as follows:
(1) Whether you are permitted to market and offer your services to PennDOT?
(2) What, if any, limitations would be imposed upon you working with
municipalities that would utilize federal funds, various state or local funds within
District 3 -0 or elsewhere in Pennsylvania?
(3) Whether there there would be any limitations on offering your services to other
federal, state or local agencies in District 3 -0 or elsewhere within the state?
Discussion: As a Municipal Services Specialist 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 § 1 1.1. This conclusion is based upon the description of your job duties,
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 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:
Weaver, 96 -618
December 17, 1996
Page 3
3 -0
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 you will have been
associated upon termination of public service is 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 District
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. Thus, in response to your second and third
specific inquiries, you are advised that funding sources have no relevance under
Section 3(g) and that the Section 3(g) restrictions apply to restrict you as to
representation before your former governmental body — PennDOT — and not as to
representation before other governmental bodies.
Weaver, 96 -618
December 17, 1996
Page 4
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;
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.
Weaver, 96 -618
December 17, 1996
Page 5
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
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. Thus, in response to your first specific inquiry,
Section 3(g) would prohibit the marketing and offering of your services to PennDOT
during the one -year period following the termination of your employment with
PennDOT.
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: As a Municipal Services Specialist 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 would become a "former public employee" subject to Section 3(g) of
the Ethics Law. The former governmental body would be PennDOT in its entirety,
including but not limited to District 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.
Weaver, 96 -618
December 17, 1996
Page 6
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
the Commission within thirty (30) days may result in the dismissal of
the appeal.
rely,
Vincent J. i opko
Chief Counsel