HomeMy WebLinkAbout98-589 HansJeffrey P. Hans, PE
1706 Newton Ransom Blvd.
Clarks Summit, PA 18411
Dear Mr. Hans:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
August 20, 1998
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us
98 -589
Re: Former Public Employee; Section 3(g); Senior Civil Engineer Supervisor;
PennDOT; Private Engineering Firm.
This responds to your letter of July 27, 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 Senior Civil Engineer Supervisor with the Pennsylvania
Department of Transportation following termination of service with the Commonwealth
of Pennsylvania, Department of Transportation.
Facts: You are currently employed as a Senior Civil Engineer Supervisor with the
Pennsylvania Department of Transportation ( "PennDOT "), where you are responsible
for the daily operations of a "design squad." In your request letter, you state that a job
description is attached, however, a job description was not found. A copy of your job
description was therefore requested from PennDOT and is incorporated herein.
You state that in the next few weeks you will be resigning your PennDOT
position to accept employment with a private engineering firm. You request an
advisory from the State Ethics Commission regarding any restrictions that would apply
to you as a former public employee.
Discussion: As Senior Civil Engineer Supervisor 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 or monitoring grants;
leasing; regulating; auditing; or other activities where the economic impact is greater
than de minimis on the interests of another person.
Hans, 98 -589
August 20, 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:
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.
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
Hans, 98 -589
August 20, 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 wbrked, 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 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.
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
Hans, 98 -589
August 20, 1998
Page 4
involve an interpretation of the Ethics Law. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: As a Senior Civil Engineer Supervisor 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 1. 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 Dopko
Chief Counsel