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HomeMy WebLinkAbout98-599 KochGeorge R. Koch 152 Welsh Rd. Huntingdon Valley, PA 19006 Dear Mr. Koch: 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 September 25, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us 98 -599 Re: Former Public Employee; Section 3(g); Assistant Construction Engineer; Transportation Construction Manager 3; PennDOT. This responds to your letter of August 26, 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 an Assistant Construction Engineer, classified as a Transportation Construction Manager 3, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: Effective July 24, 1998, you retired from your position as Assistant Construction Engineer, classified as a Transportation Construction Manager 3, with the Commonwealth of Pennsylvania, Department of Transportation. You note that while employed with PennDOT, your headquarters was at Engineering District 6 -0 in St: Davids, PA. You have a new position as "Director, Highway Construction" for Site - Blauvelt Engineers, Inc. of Mt. Laurel, NJ. You state that in your new position, you would perform construction management duties on private work and would be in charge of construction inspection for various states' transportation departments, including Pennsylvania, New Jersey, Delaware, and New York. Your construction inspection duties would include preparing proposals, attending Scope of Work meetings, and billing for work performed. You request an advisory from the State Ethics Commission as to: 1) your having business dealings with PennDOT and /or the Pennsylvania Turnpike Commission; 2) your ability to attend PennDOT's Consultant Selection Committee Public Meetings; and 3) your ability to visit PennDOT projects, not with the intent to market or influence, but only to service Site - Blauvelt employees on said projects and to respond directly to PennDOT- initiated requests. You state your view that your performance of the above duties of your new position would not constitute a conflict of interest. Your name would not appear on any proposal or invoice, and you contend that you would not be marketing or attempting to influence PennDOT. Koch, 98 -599 September 25, 1998 Page 2 Copies of your job description and job classification specifications for your former position with PennDOT, as well as an organizational chart for Engineering District 6 -0, have been obtained from PennDot and are incorporated herein by reference. Discussion: In the former capacity as an Assistant Construction Engineer, classified as a Transportation Construction Manager 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 § 1 1.1. 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. 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. 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 Koch, 98 -599 September 25, 1998 Page 3 65 P.S. §402. 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, inter alia, corporations and other businesses. It also 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 have been associated upon termination of public service is PennDOT in its entirety, including but not limited to Engineering District 6 -0. 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 Koch, 98 -599 September 25, 1998 Page 4 "persons" before PennDOT. The Pennsylvania Turnpike Commission would be considered a separate governmental body, and Section 3(g) would not operate to restrict you as to the Pennsylvania Turnpike Commission. As for your specific inquiry regarding whether you would be able to attend PennDOT's Consultant Selection Committee Public Meetings, you are advised as follows. To the extent such meetings would be open to the public, you could attend the meetings; however, if your role would go beyond that of a general observer so that you would actually participate and /or advocate positions, not as a member of the general public but as a representative of your new employer, such representation would be prohibited. To the extent such meetings would not be open to the public and you would be attending in your capacity with your new employer, such would constitute prohibited representation of your new employer before PennDOT. Turning to your specific inquiry regarding whether you would be able to visit PennDOT projects to service Site - Blauvelt employees on those projects and to respond directly to PennDOT initiated requests, you are advised that regardless of your stated good intentions, as a practical matter, it would appear to be impossible for you to engage in such conduct without running afoul of Section 3(g). Visiting PennDOT projects as the person in charge of construction inspection, as well as responding directly to PennDOT initiated requests, would certainly seem to constitute "representation" under the Ethics Law. 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 the applicability of the Governor's Code of Conduct. Conclusion: In the former capacity as an Assistant Construction Engineer, classified as a Transportation Construction Manager 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. 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(1 1), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any Koch, 98 -599 September 25, 1998 Page 5 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 7'opko Chief Counsel