HomeMy WebLinkAbout98-614 ShafferDennis K. Shaffer, P.E.
33 Coates Lane
Indiana, PA 15701
Re: Former Public Employee; Section 3(g); District Contract Management Engineer;
PennDOT; Consultant; Construction Inspector.
Dear Mr. Shaffer:
This responds to your letter of October 20, 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 Contract Management Engineer classified as
a CE Manager, Transportation, following termination of service with the Commonwealth
of Pennsylvania, Department of Transportation.
Facts: You are currently employed as a District Contract Management Engineer
classified as a CE Manager, Transportation, by the Commonwealth of Pennsylvania,
Department of Transportation ( "PennDOT") in District 10 -0. You plan to retire your
position in the spring of 1999 and are interested in working as a construction inspector
for a consultant on a PennDOT project. You state that you understand that by law a
PennDOT employee "cannot get employment on a Department project for a minimum of
one year after retirement unless prior approval is obtained."
Your current position involves preparing proposals for construction contractors'
bids on PennDOT roadway and bridge projects. You have submitted a photocopy of your
job description, which is incorporated herein by reference. You state your belief that
working for a consultant to inspect these projects, following termination of your service
with PennDOT, would not be a conflict of interest since you currently have no
involvement in the selection of the consultants.
You ask for an advisory from the State Ethics Commission as to whether,
following termination of your employment with PennDOT, you could be employed as a
construction inspector on PennDOT constructions projects.
Discussion: As a District Contract Management Engineer classified as a CE
Manager, Transportation, 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
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
November 20, 1998
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us
98 -614
Shaffer, 98 -614
November 20, 1998
Page 2
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 ":
65 P.S. §402.
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.
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
Shaffer, 98 -614
November 20, 1998
Page 3
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.
Having set forth all of the above restrictions, it is clear that although the Ethics
Law would not preclude you from accepting a position of employment with a consultant,
it would restrict your conduct in your new position to the extent that such conduct
would constitute representation before PennDOT. As a practical matter, it would appear
to be impossible for you to perform the functions of the proposed position without
transgressing Section 3(g) since you will have difficulty performing the responsibilities
of your proposed position without encountering PennDOT personnel.
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
Shaffer, 98 -614
November 20, 1998
Page 4
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 a District Contract Management Engineer classified as a CE
Manager, Transportation, 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 ). 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,
\ 1/4
V'ncent J. k• pko
Chief Counsel