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HomeMy WebLinkAbout98-581 RaoHarish B. Rao 3123 Wheatlyn Rd. York, PA 17402 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 22, 1998 98 -581 Re: Former Public Employee; Section 3(g); Senior Civil Engineer; Civil Engineer 3; Geotechnical Engineering; PennDOT. Dear Mr. Rao: This responds to your letter of June 19, 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 Senior Civil Engineer classified as a Civil Engineer 3 following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: On April 17, 1998, you resigned from your position as a Senior Civil Engineer (Civil Engineer 3) in the Central Office of the Pennsylvania Department of Transportation ( "PennDOT "). As a Senior Civil Engineer for PennDOT, you specialized in Geotechnical Engineering. Your primary responsibility was to provide geotechnical engineering support to the 11 PennDOT engineering districts, specifically to the District Geotechnical Engineers, who have the authority on technical decisions concerning the projects within their regions of the state. You served in an advisory role, providing quality assurance to the District Geotechnical Engineers only as requested. You state that you did not perform in -depth engineering design on projects, due to a lack of staffing and the increased number of projects since the implementation of the most recent gas tax. Your job description and job classification specifications for your former position with PennDOT have been obtained and are incorporated herein by reference. You have interviewed with several engineering firms that are interested in hiring you. You are interested in accepting employment as an assistant engineer with Michael Baker, Jr., Inc. ( "Baker "). Baker has numerous existing contracts with PennDOT and is interested in hiring someone to provide geotechnical engineering assistance on those projects. If hired by Baker, you would be a member of a pool of professional support staff working under the direct supervision of an Engineer /Manager who would assign projects to you. In accordance with PennDOT policy, prior to being assigned to any PennDOT projects, your name would be submitted on a list of employees who could be invoiced for labor cost. If your name and direct labor rate did not appear on the list prior to your working on a project, Baker could not recover your labor cost from FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Rao, 98 -581 July 22, 1998 Page 2 PennDOT for that project. Without the ability to recover your labor cost, you state that Baker and other private engineering firms would have no incentive to hire you full time. You state that your work on project assignments would be reviewed by your superiors at Baker, who would then sign and submit them to PennDOT under their professional seal. Furthermore, as one member of a large support staff, you state that there would be no need for you to attend meetings or to contact PennDOT during the performance of your assignments. Lastly, your Manager at Baker would review and countersign your weekly time charge record, such that if a question were to arise regarding your labor charges, your Manager rather than you would represent Baker to PennDOT. You state that you understand that under the Ethics Law you are to have no professional contact with PennDOT for one year following your termination. However, you state that you have been led to understand that you are permitted to work on PennDOT projects. You request clarification of how you may do this given the prohibition against' contacting PennDOT. You contend that if contact of any type is precluded, you would appear to be precluded from performing any work for PennDOT for one year. You seek an advisory clarifying permissible activities and contacts with PennDOT in your specific situation. You state that it is your understanding that there is no "firm ruling" regarding a former employee of the PennDOT Central Office entering the private sector. It is your belief that past rulings concern District employees. You ask that the following points be considered: 1) If you accept the position with Baker, you would be shifting from a Senior Civil Engineer classification with the PennDOT Central Office, to an Assistant Engineer classification, with reductions in your authority and responsibility; 2) You would be performing engineering design tasks instead of consulting and quality assurance; 3) You would be assigned to projects, instead of "being needed as required" in the PennDOT Central Office; 4) During your first year with Baker, your contact with PennDOT would be limited to your name appearing among a group of names on documents (staff lists and invoices only) received by PennDOT administrative personnel; and 5) You ask the Commission to seriously consider and appreciate your position as your experience is in geotechnical engineering associated with highway and heavy construction , and if it is determined that you may not work at all on PennDOT projects for the first year, the prospect of your continued employment in Pennsylvania is in jeopardy. Discussion: In the former capacity as a Senior Civil Engineer classified as a Civil .Engineer 3 for the Commonwealth of Pennsylvania, Department of Transportation, you would be 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 §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 Rao, 98 -581 July 22, 1998 Page 3 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. The restrictions of Section 3(g) shall initially be set forth. 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: 65 P.S. §402. 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. 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. Rao, 98 -581 July 22, 1998 Page 4 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. Turning to your specific situation, the governmental body with which you have been associated upon termination of public service is 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. The fact that you worked out of the Central Office as opposed to a District Office would in no way lessen the restrictions of Section 3(g) as they would apply to you since, as with a District employee, your former governmental body would include all of PennDOT. You are advised that the Ethics Law would not prohibit you from working on PennDOT projects per se, provided your activities would not fall within prohibited representation. Based upon the facts which you have submitted, if you were to accept the proposed job with Baker, your contact with PennDOT during the one -year period of applicability of Section 3(g) would consist of the submission of your name on staff Rao, 98 -581 July 22, 1998 Page 5 lists and invoices to PennDOT. Similar types of submissions have already been considered by the Commission. See, Shay, supra, and Abrams /Webster, supra. The proposed submission of your name on staff lists and invoices to PennDOT would, under the facts which you have submitted, transgress Section 3(g), except that as to a pre- existing contract that would not involve the PennDOT unit where you worked, your name could appear on routine invoices if required by PennDOT regulations. As for the points which you have raised for consideration, you are advised that the Ethics Law does not provide for exceptions, variances, or waivers of the applicability of the restrictions of Section 3(g) based upon such factors. The State Ethics Commission does not have the authority to grant that which is not authorized by law. See, Richardson, Opinion No. 93 -006; Ziegler, Opinion No. 98 -001. As the Commission stated in Ziegler, supra: [T]his Commission is duty -bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section 3(g) restrictions to apply to all former public officials /public employees. There is no mention in the statute of any "variances" or "exceptions." Obviously, the facts in any given case may be more or less compelling than in others, but the law must be applied fairly and uniformly. Id. at 6 (Emphasis added). Similarly, in your case, the State Ethics Commission would have no basis in the law to treat you differently from all of the other former public officials /public employees who are subject to Section 3(g). 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 underthe 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: In the former capacity as a Civil Engineer 3 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. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Rao, 98 -581 July 22, 1998 Page 6 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. cerely, incent Dopko Chief Counsel