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HomeMy WebLinkAbout98-627 FettermanDavid R. Fetterman, P.E. 1631 Quincy Ave. Dunmore, PA 18509 Dear Mr. Fetterman: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 18, 1998 Re: Former Public Employee; Section 1 103(g); Assistant Highway District Engineer; Maintenance; Design; PennDOT. This responds to your letter of November 17, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any restrictions upon employment of an Assistant Highway District Engineer for Maintenance following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: You are employed as an Assistant Highway District Engineer (ADE) for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). For the past two years you have served as an ADE for Maintenance. You previously served for approximately twelve years as an ADE for Design. Your current job description and job classification specifications have been obtained and are incorporated herein by reference. It is noted that you work in Transportation District 4 -0. In April, 1999 you will be eligible for retirement from Commonwealth employment. Recently you have had several inquiries concerning your availability to work in "the design community." You expect that in such a position you would be involved in activities such as providing guidance on design issues, reviewing projects for "constructability," and participating in marketing visits to clients and prospective clients. You request an advisory from the State Ethics Commission as to whether you would be restricted from the above - mentioned types of activities in light of the fact that you have not been involved with design activities for the past two years. Discussion: As an Assistant Highway District Engineer for Maintenance for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics Commission. See, Act 93 of 1998, Chapter 11; 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; FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us 98 -627 Fetterman, 98 -627 December 18, 1998 Page 2 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 1 103(g) of the Ethics Act. While Section 1103(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 1 103. Restricted activities. (g) Former official or employee. - -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. 1998, Chapter 11, §1103(g) (Emphasis added). terms "represent," "person," and "governmental body with which a public public employee is or has been associated" are specifically defined in the as follows: Act 93 of The official or Ethics Act Section 1102. 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. Act 93 of 1998, Chapter 11, §1102. 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. Fetterman, 98 -627 December 18, 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 1103(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 Act 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 1103(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 beerr 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 wil have been associated upon termination of public service will be PennDOT in its entirety, including but not limited to Transportation District 4 -0. Therefore, for the first year after termination of your service with PennDOT, Section 1103(g) of the Ethics Act will apply and restrict "representation" of "persons" before PennDOT. As for your specific inquiry regarding involvement with the "design community," such would not be prohibited by Section 1103(g) as long as you would not engage in prohibited representation before PennDOT during the one -year period of applicability of Section 1103(g). Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(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 Fetterman, 98 -627 December 18, 1998 Page 4 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act 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 Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As an Assistant Highway District Engineer for Maintenance for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11 ( "Ethics Act "). Upon termination of service with PennDOT, you would become a "former public employee" subject to Section 1 103(g) of the Ethics Act. 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 Act. Further, should service be terminated, as outlined above, the Ethics Act 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 1107(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. Si erely, a Vincent J. Dopko Chief Counsel