HomeMy WebLinkAbout98-609 ConfidentialSTATE 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 20, 1998
98 -609
Re: Former Public Employee; Section 3(g); Manager; Program A; PennDOT.
This responds to your confidential advisory request letter dated September 28,
1998 to Representative B which was forwarded to the State Ethics Commission for a
reply.
Issue Whether the Public Official and Employee Ethics Law presents any
restrictions upon employment of the Manager of Program A following termination of
service with the Commonwealth of Pennsylvania, Department of Transportation.
Facts: You have been an employee of the Commonwealth of Pennsylvania
Department of Transportation ( "PennDOT ") for twenty -five years. Your current position
since August of 1997 is that of Manager of Program A.
You have decided to pursue employment with a private company. One particular
company that you are considering is Company C, with which you have had a working
relationship for the past three years.
Your affiliation with Company C began when the PennDOT offices were moved
from the T &S Building to the Riverside Office Center at 1 101 S. Front St. in Harrisburg
and you were designated as the "D" for E. Initially the new PennDOT building was leased
from C.R. Center, L.P. — it was sold in the summer of 1998 to Dauphin County General
Authority — by the Pennsylvania Department of General Services. Company C was the
F for the Riverside Office Center and remains the G.
When the move to the Riverside Office Center was complete in September of
1996, you became the "H" and worked closely with the Company C I. You state that
there were only a few occasions, totaling less than $2,000, where payment for work
was made directly to Company C. You state that all other payments /contracts were
through C.R. Center, L.P.
You ask for an advisory from the State Ethics Commission as to what you may
be involved in should you terminate Commonwealth employment and accept a position
with Company C. Specifically, you ask: 1) whether as an employee of Company C you
would be prohibited from working with PennDOT, since the building and lease
information was all in the name of C.R. Center and now Dauphin County General
Authority; and 2) if you may not be affiliated with PennDOT for a certain period of time
following termination of Commonwealth employment, whether there are other agencies
with which you also may not have a working relationship.
Discussion: As the Manager of Program A for the Commonwealth of
Pennsylvania, Department of Transportation, you would be considered a "public
FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.ra.us
Confidential, 98 -609
October 20, 1998
Page 2
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 your job title which 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.
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
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.
65 P.S. §402.
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.
Confidential, 98 -609
October 20, 1998
Page 3
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
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.
As to the specific questions you pose, although the Ethics Law would not prohibit
your working for Company C, you could not represent Company C in "working with"
PennDOT. The restriction extends for a period of one year following termination of public
service. Finally, Section 3(g) of the Ethics Law would not restrict such activities to
agencies, other than PennDOT, since such other agencies would not be your former
governmental body.
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
Confidential, 98 -609
October 20, 1998
Page 4
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: As the Manager of Program A 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 §1.3.2(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,
ncent opk
hief Cou ' el