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HomeMy WebLinkAbout98-604 HaaseRobert H. Haase 1134 Avalon Parkway Williamsport, PA 17701 Dear Mr. Haase: 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 October 13, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec ©state.ba.us 98 -604 Re: Former Public Employee; Section 3(g); District Consultant Liaison Engineer; Civil Engineer Manager; PennDOT. This responds to your letter of September 10, 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 Consultant Liaison Engineer, classified as a Civil Engineer Manager, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: After over 30 years of service, you retired from the Department of Transportation (PennDOT) on July 24, 1998. You held various positions during your employment with PennDOT. Your final position, which you held since 1992, was as a "District Consultant Liaison Engineer." In that position, you were classified as a Civil Engineer Manager. Following your retirement from PennDOT, you accepted a position with a "full service design /engineering consultant" in Williamsport, Pennsylvania. You are Senior Project Manager with your current firm, which has contracts with PennDOT in Engineering Districts 3 -0 (Montoursville), 5 -0 (Allentown), 8 -0 (Harrisburg), and 9 -0 (Hollidaysburg). You request an advisory from the State Ethics Commission regarding limitations imposed by the Ethics Law with regard to your services within the Commonwealth. You pose numerous inquiries. Initially, you ask for assistance in understanding the intent of the law. You request the provision of: 1) the legal reference that controls your activities; 2) a general statement of the intent of the law; and 3) the length of time that the restriction is in effect and any exemptions to that time period. You then inquire whether you may, either in District 3 -0, in other districts, or in the PennDOT Central Office: 1) have direct contact with PennDOT personnel regarding projects; or 2) participate in the design of projects and bill for your services, provided your name is not directly related to submissions, except on invoices, or as part of the approval process. Haase, 98 -604 October 13, 1998 Page 2 You ask whether you may have dealings with the Pennsylvania Turnpike Commission. You ask whether you may have dealings with local municipalities that use only local and federal funds for transportation projects, or with local municipalities if state funds are involved. You ask whether there would be limitations with regard to offering your services to other state, federal, or local agencies. Finally, you ask whether you may represent your firm at meetings with clients on two specific transportation projects, if PennDOT is present at such meetings. You state that both projects are being designed using only local funding. The two projects are being directed by a municipal government and a Council of Governments respectively, and PennDOT is involved in these projects as a resource agency only, with no approval authority. You have submitted a draft copy of your most recent PennDOT job description, which document was in the process of being finalized when you left state employment and which is incorporated herein by reference. Discussion: In the former capacity as a District Consultant Liaison Engineer, in which you were classified as a Civil Engineer Manager, 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 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, and then your numerous inquiries shall be addressed. 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: Haase, 98 -604 October 13, 1998 Page 3 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, inter alla, 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 -011. 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 Haase, 98 -604 October 13, 1998 Page 4 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. 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. Turning to your inquiries, you first ask for the legal reference that controls your activities. As noted above, the restrictions which would apply are set forth in 65 P.S. §403(g), quoted above. As for the intent of the law, the Commission stated in Shay, Opinion No. 91 -012: This Commission has long recognized that the Legislative intent in promulgating Section 3(g) of the Ethics Law was to protect the public trust, such that a public official /employee must act consistently with the public trust and upon leaving public service, may not utilize his association with the public sector, officials or employees to secure treatment or benefits for himself or his new employer that may only be obtainable because of his association with his former governmental body. Id. at 3. Additionally, it is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. That intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit . . ." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. In response to your third inquiry, as noted above, Section 3(g) applies for a one - year period following termination of the public service in question. There is no basis in the statute for granting any waiver as to the one -year restriction. 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: [Tiflis 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. Haase, 98 -604 October 13, 1998 Page 5 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. Iii. at 6. Similarly, in your case, the State Ethics' Commission would not have the power to grant a "waiver" of the Section 3(g) restrictions because such are not authorized by the Ethics Law. Your next two questions are posed alternatively as to District 3 -0, other districts, or the Central Office of PennDOT. You are advised that as noted above, the restrictions of Section 3(g) apply to restrict you as to PennDOT in its entirety. Direct contact with PennDOT personnel regarding your employer's projects would be prohibited during the one -year period of applicability of Section 3(g). With regard to designing projects, to the extent you would be able to do that sort of work without engaging in prohibited representation before PennDOT, such would be permissible under Section 3(g). However, as noted above, your name could not appear on submissions to PennDOT. That restriction applies to preclude the submission of your name on invoices except as to a pre- existing contract that would not involve District 3 -0. See, Abrams - Webster, supra. With regard to the Pennsylvania Turnpike Commission, you are advised that such is considered a separate governmental body from PennDOT. Based upon the facts which you have submitted, the restrictions of Section 3(g) would only apply to restrict you as to PennDOT; they would not restrict you as to the Pennsylvania Turnpike Commission. Turning to your inquiries as to the sources of funding, specifically local, state, or federal funding, and the potential for offering your services to other state, federal, or local agencies, you are advised that you would not be prohibited from working with municipalities that would utilize state funds, provided that in performing such services, no prohibited contacts would occur as to PennDOT and no written materials containing your name would be submitted to PennDOT, except to the narrow and limited extent permitted by Webster, supra, as set forth above. The answer would be the same as to services to other state, federal, or local agencies, either within or beyond District 3 -0. As for your final question, involving representing your firm at meetings with clients and PennDOT on two particular projects for which PennDOT's involvement is limited to acting as a "resource agency," with no approval authority, you are advised as follows. Mere interaction with PennDOT where PennDOT's role would be strictly limited to providing information as a resource, and where PennDOT would not be involved in any other way and would not have any approval authority, would not transgress Section 3(g). However, you 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. Haase, 98 -604 October 13, 1998 Page 6 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 a District Consultant Liaison Engineer, in which you were classified as a Civil Engineer Manager, 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(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. i cerely, L. Vincent Dopko Chief Counsel