HomeMy WebLinkAbout98-558 BeachGary E. Beach
R.R. 1, Box 197
Williamsport, PA 17701
Dear Mr. Beach:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 19, 1998
Re: Former Public Employee; Section 3(g); Highway Designer; Engineering
Consultant; PennDOT.
This responds to your letter of April 4, 1998 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any
restrictions upon employment of a highway designer following termination of service
with the Commonwealth of Pennsylvania, Department of Transportation.
Facts: You are currently employed as a Highway Designer for the
Commonwealth of Pennsylvania Department of Transportation (PennDOT) in District
3 -0, which covers nine counties. Your current duties with PennDOT involve highway
design under the direct supervision of a highway design "squad leader" who has
control over and responsibility for your work. At no time were you involved with
review of consultant work or choosing consultants that work with PennDOT.
You request an advisory of the State Ethics Commission on whether you, if
employed by an engineering consulting firm which has engineering agreements with
PennDOT in several Districts and offers services to other state and federal agencies,
may market and offer your services to PennDOT in other Districts outside of District
3 -0; what your limitations are in District 3 -0 or on your working with municipalities
that would utilize Federal Highway funds, State funds or liquid fuel funds in or out of
the District; and whether there are any limitations on offering your services to other
state, federal or local agencies.
Discussion: As Highway Designer for the Commonwealth of Pennsylvania,
Department of Transportation, you would be considered a "public employee" subject
to the Public Official and Employe Ethics Law ( "Ethics Law ") and the Regulations of
the State Ethics Commission. See, 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 one or more of the following: 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.
98 -558
Beach, 98 -558
May 19, 1998
Page 2
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.
While Section 3(g) does not prohibit a former public official /public employee
from accepting a position of employment, it does restrict the former public
official /public employee with regard to "representing" a "person" before "the
governmental body with which he has been associated ":
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.
65 P.S. §403(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Law 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.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"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.
65 P.S. §402.
The term "Person" is very broadly defined. It includes the former public
employee himself, Confidential Opinion 93 -005, as well as a new governmental
employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of .
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (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
Beach, 98 -558
May 19, 1998
Page 3
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
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)
also generally prohibits 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 that existed prior to termination
of public service, Shay, Opinion 91 -012. However, if such a pre- existing contract
does not involve 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-
011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public
official /public employee may not be identified on documents submitted to the former
governmental body. The public official /public employee may also counsel any person
regarding that person's appearance before his former governmental body. Once again,
however, the activity in this respect should not be revealed to the former governmental
body. The Ethics Law would not prohibit or preclude making general informational
inquiries to the former governmental body to secure information which is available to
the general public, but 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.
Section 3(g) only restricts the former public official /public employee with regard
to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public
employee is or has been associated" is not limited to the particular subdivision of the
agency or other governmental body where the public official /employee had influence
or control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you are associated upon termination of
public service would be PennDOT in its entirety. Therefore, for the first year after
termination of your service with PennDOT, Section 3(g) of the Ethics Law would apply
and restrict "representation" of "persons" before PennDOT.
As to the specific questions you pose, you would be prohibited during the first
year after termination of service from offering or marketing your services to PennDOT,
based upon the analysis of Section 3(g) above. Since your governmental body is
PennDOT in its entirety, the prohibition exists both within and outside of District 3 -0.
As to your working with municipalities that utilize federal, state or liquid fuel funds,
Section 3(g) would not restrict such activities since you would be working with
governmental bodies other than PennDOT. Whether such municipalities would be
within or outside of District 3 -0 would not matter.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 3(g) only. It is expressly assumed that there has been no use
of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of
the Ethics Law. Further, you are advised that 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
Beach, 98 -558
May 19, 1998
Page 4
understanding that the vote, official action, or judgment 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 Law 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 Highway Designer 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. 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 would
require that a Statement of Financial Interests be filed by no later than May 1 of the
year after 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
etely, 444
Vincent J. • • pko
Chief Counsel