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HomeMy WebLinkAbout98-603 LeonettiSTATE 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 October 9, 1998 Leo Leonetti 1 1 105 Waldemire Dr. Philadelphia, PA 19154 98-603 Re: Former Public Employee; Section 3(g); Assistant District Engineer- Construction; Assistant Highway District Engineer; PennDOT. Dear Mr. Leonetti: This responds to your letter of September 8, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law would restrict an Assistant District Engineer- Construction, classified as an Assistant Highway District Engineer, following termination of service with PennDOT, specifically with regard to future employment with another governmental body and /or continued involvement with an annual workshop that is co- sponsored by four governmental bodies including PennDOT. Facts: You are employed by the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) as an "Assistant District Engineer- Construction" in Engineering District 6 -0. 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 "Assistant Highway District Engineer." You are considering retiring from PennDOT. You state that you are aware that if you would retire, you could not represent anyone before PennDOT for one year. You seek advice as to two specific areas of inquiry. First, you state that you currently serve as chairperson of a Construction Management Training Workshop (CMTW), sponsored by the Federal Highway Administration, PennDOT, the Pennsylvania Turnpike Commission, and the Philadelphia Department of Streets. Representatives of each of the aforementioned agencies attend the annual workshop. You state that the purpose of the workshop is to provide information to the attendees. You receive no fees for performing your duties as chairperson. You ask whether, following retirement from PennDOT, you would be permitted to: 1) continue to assist with the planning and securing of speakers for the CMTW; and 2) assist at the CMTW with chairperson duties, including coordinating the meeting. FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Leonetti, 98 -603 October 9, 1998 Page 2 Your second area of inquiry involves your potential employment by another governmental body, specifically, the federal government, a local government, or an authority. You ask whether you may: 1) request in writing engineering information from PennDOT for such a government agency or authority; 2) transmit engineering information to PennDOT from such a government agency or authority; and /or 3) participate in a planning or engineering meeting with PennDOT employees present to coordinate projects involving a local government or authority and PennDOT, as long as there is no contractual relationship. Discussion: As an "Assistant District Engineer - Construction," classified as an "Assistant Highway District Engineer" 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. 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. Although you have stated generally that you are aware of the one -year restriction against representation before PennDOT, this Advice shall set forth the restrictions of Section 3(g) so as to provide a complete response to your inquiry. 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. Leonetti, 98 -603 October 9, 1998 Page 3 65 P.S. §402. "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, inter Alin, 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 Leonetti, 98 -603 October 9, 1998 Page 4 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 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 "persons" before PennDOT. Having set forth the restrictions of Section 3(g), your specific inquiries shall now be addressed. With regard to your first specific inquiry, regarding continued involvement with the CMTW following retirement from PennDOT, you are advised as follows. Under the submitted facts, your continued attendance and involvement with the CMTW following your retirement from PennDOT would not, in and of itself, constitute representation before PennDOT. Factually, PennDOT is only one of the four governmental sponsors of the CMTW, and you would not be compensated for performing duties related to the CMTW. Therefore, you would not be prohibited from remaining involved with the CMTW as long as you would do so within the parameters of Section 3(g). For example, during the course of your CMTW involvement, you could not engage in prohibited representation of a new employer before PennDOT representatives. Within the parameters of Section 3(g), you could continue to assist with the planning and securing of speakers as well as the performance of Chairperson duties for the CMTW. Turning to your second specific area of inquiry, involving your potential employment with either the federal government, a local government, or an authority, as noted above, the restrictions of Section 3(g) do apply to prohibit the representation of a new governmental employer before the former governmental body. Ledebur, supra. You would therefore be prohibited from requesting or transmitting engineering information to /from PennDOT on behalf of a new employer, because such activity would constitute representation of the new employer before PennDOT. Additionally, you would generally be precluded from participating in planning or engineering meeting(s) to coordinate projects which would include PennDOT as well as your new employer where PennDOT employees would be present, regardless of whether a contractual relationship would exist. However, where PennDOT would be acting solely as a source of information as to a project, with no other involvement and no approval authority, you could conceivably participate in a meeting, but would have to exercise the utmost caution in order to avoid engaging in prohibited representation of your employer as to other projects involving 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. Leonetti, 98 -603 October 9, 1998 Page 5 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 an "Assistant District Engineer- Construction," classified as an "Assistant Highway District Engineer," 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(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. erely, scent `1 Dop'o Chief Counsel