HomeMy WebLinkAbout98-631 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
December 24, 1998
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.Da.us • e - mail: sec@state.pa.us
98 -631
Re: Former Public Employee; Section 1103(g); Senior Civil Engineer Supervisor
Transportation; A Division; B Unit; PennDOT.
This responds to your letter received on November 30, 1998 by which you
requested confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act, Act 93 of 1998,
Chapter 11 presents any restrictions upon employment of a Senior Civil Engineer
Supervisor Transportation following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation.
Facts: You have been employed as a Senior Civil Engineer Supervisor
Transportation ( "SCEST ") in the A Division for the B Unit for the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ") since September, 1998.
Prior to that position, you were employed for eight years as a Civil Engineer in the
PennDOT C unit. You have submitted a copy of your job description for the SCEST
position, as well as a job description for your prior position, which documents are
incorporated herein by reference.
You are considering terminating your public employment and are seeking private
positions primarily involving D and E. You have not obtained a Professional Engineering
license and would therefore be applying for private positions as a staff engineer or
engineer -in- training.
You ask for an advisory from the State Ethics Commission as to what
restrictions would be placed upon your future employment following termination of
employment with PennDOT.
Discussion: As a Senior Civil Engineer Supervisor Transportation in the A
Division for the B Unit for the Commonwealth of Pennsylvania, Department of
Transportation, 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; 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.
Confidential Advice, 98 -631
December 24, 1998
Page 2
Consequently, upon termination of public service, you would become a "former
public employee" subject to Section 1 103(g) of the Public Official and Employee Ethics
Act.
While Section 1 103(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 1103. 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.
Act 93 of 1998, Chapter 11, §1103(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 Act as follows:
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.
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
Confidential Advice, 98 -631
December 24, 1998
Page 3
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 1 103(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 associated upon termination of
public service is PennDOT in its entirety. Therefore, for the first year after termination
of your service with PennDOT, Section 1 103(g) of the Ethics Act would apply and
restrict "representation" of "persons" before PennDOT.
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
1103(a) of the Ethics Act. Further, you are advised that Sections 1 103(b) and 1 103(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
Confidential Advice, 98 -631
December 24, 1998
Page 4
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: As a Senior Civil Engineer Supervisor Transportation in the A
Division for the B Unit for the Commonwealth of Pennsylvania, Department of
Transportation ( "PennDOT "), you would be considered a "public employee" as defined
in the Ethics Act. Upon termination of service with PennDOT, you would become a
"former public employee" subject to Section 1103(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.
rely,
cent J. !• pko
Chief Counsel