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HomeMy WebLinkAbout98-570 JonesWilliam D. Jones RD 4, Box 190 Congress Hill Rd. Franklin, PA 16323 -9771 Dear Mr. Jones: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 23, 1998 98 -570 Re: Former Public Employee; Section 3(g); District Right -of -Way Administrator; Right -of -Way Administrator 2; PennDOT. This responds to your letter of May 29, 1998 by 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 District Right of Way Administrator 2 following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: You are currently employed by the Commonwealth of Pennsylvania Department of Transportation (PennDOT) as a District Right of Way Administrator for Engineering District 1 -0, which is comprised of six counties in the northwest corner of the state. In your current position, you are responsible for the acquisition of private property for state highways and maintenance sites; approving all offers of just compensation, settlements and administrative settlements of up to $50,000; and managing an office comprised of three staff appraisers and three staff negotiators. You will be retiring from your position with PennDOT on July 10, 1998 and plan to begin employment with a private firm where you would be working on right -of -way acquisitions under contract for PennDOT. You specifically inquire as to whether you may, in either District 1 -0 or in another district: 1) do work for the private firm; 2) be included in a contract proposal; 3) work at a field office maintained by the private firm under an existing contract; and /or 4) make contact with PennDOT employees. Copies of your job description, job classification specifications, and organizational chart have been obtained from PennDOT and are incorporated herein by reference. It is noted that your job classification is "Right -of -Way Administrator 2." Discussion: As a District Right of Way Administrator, classified as a Right -of- Way Administrator 2, for the Commonwealth of Pennsylvania, Department of Jones, 98 -570 June 23, 1998 Page 2 65 P.S. 5402. Transportation, you are considered a "public employee" subject to the Public Official and Employee Ethics Law ( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. §402; 51 Pa.Code § 1 1.1. This conclusion is based upon the job description, which when reviewed on an objective basi §, 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. 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. Jones, 98 -570 June 23, 1998 Page 3 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 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 -01 1. 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 would be associated upon termination of public service would be PennDOT in its entirety, including but not limited to Engineering District 1 -0. Therefore, for the first year after termination of your service with PennDOT, Section 3(g) of the Ethics Law would apply and would restrict "representation" of "persons" before PennDOT. Your specific inquiries shall now be addressed. It is noted that each of your inquiries is framed so as to pose the question as to Engineering District 1 -0 alone and as to PennDOT in its entirety. As noted above, your former governmental body would be PennDOT in its entirety. Thus, to the extent prohibitions would exist as to your specific inquiries, such prohibitions would exist both within and outside of District 1 -0. Jones, 98 -570 June 23, 1998 Page 4 In response to your first specific inquiry, Section. 3(g) would not preclude you from doing work for the private firm, as long as in performing such work, you would comply with the restrictions of Section 3(g) as set forth above. In response to your second specific inquiry, the submission of contract proposal(s) containing the name of a former public official /public employee is specifically enumerated in the Ethics Law as an example of "representation." Accordingly, you could not be identified in a contract proposal submitted by your new employer to PennDOT during the one -year period of applicability of Section 3(g), because such would constitute representation of your new employer before your former governmental body. In response to your third specific inquiry, you could only work in a field office maintained by the private firm (either under a new contract or existing contract) if such could be accomplished without transgressing the restrictions of Section 3(g) as set forth above. As a practical matter, it would appear to be extremely difficult to work at a PennDOT site without engaging in prohibited representation of your new employer before PennDOT. In response to your fourth specific inquiry, you could not contact any PennDOT employees on behalf of your new employer. Contacts that would be strictly of a social nature and that would not involve prohibited representation would not be prohibited by the Ethics Law. However, even social contacts may not be used as a vehicle for engaging in prohibited representation. 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 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 applicability of the Governor's Code of Conduct. Conclusion: As a District Right of Way Administrator, classified as a Right -of- Way Administrator 2, for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are 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. Jones, 98 -570 June 23, 1998 Page 5 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 forma/ 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. opko Chief Counsel