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HomeMy WebLinkAbout99-502 WendelSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL January 21, 1999 Jeffrey W. Wendel 1 128 Glenside Downingtown, PA 19355 99 -502 Re: Former Public Employee; Section 1103(g); Professional Engineering Assistant to a District Construction Engineer; Senior Civil Engineer Manager; PennDOT. Dear Mr. Wendel: This responds to your letter of December 15, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et. seq., presents any restrictions upon employment of a Senior Civil Engineer Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation (PennDOT). Facts: According to your job description, a copy of which has been submitted and is incorporated herein by reference, you are currently employed by PennDOT as a Professional Engineering Assistant to the District Construction Engineer in Engineering District 6 -0. You are classified as a Senior Civil Engineer Manager. You intend to leave your current position to seek employment with either an engineering consultant or construction contractor which does business with the Commonwealth of Pennsylvania. You have posed five specific inquiries. You first ask whether there are limitations under the Ethics Act that would apply to PennDOT. You further ask what limitations would apply to you under the Ethics Act as to: (a) representing either a consultant or contractor performing work for PennDOT in Districts other than 6 -0; (b) being employed by a consultant or contractor with regard to local municipalities that administer projects for which they receive funding from the Commonwealth; (c) being employed by a consultant or contractor which performs work for other Commonwealth agencies, such as the Pennsylvania Turnpike Commission or the Department of General Services; or (d) attending pre -bid meetings in District 6 -0 or other Districts, as an employee of a contractor bidding for contracts, where you would only be an observer and not a participant. Discussion: As a Professional Engineering Assistant to the District Construction Engineer in PennDOT's Engineering District 6 -0, in which position you are classified as a Senior Civil Engineer Manager, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Wendel, 99 -502 January 21, 1999 Page 2 Pa.C.S. §1102; 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. 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 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. 65 Pa.C.S. §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. 65 Pa.C.S. §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. Wendel, 99 -502 January 21, 1999 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 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 t� the entire body. See, Legislative Journal of House, 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90 -009 -R Session, No. The governmental body with which you will have been associated upon termination of public service is PennDOT in its entirety, including but not limited to Engineering District 6 -0. Therefore, for the first year after termination of your service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before PennDOT. Having set forth the restrictions of Section 1 103(g) of the Ethics Act, your specific inquiries shall now be addressed. With regard to your first specific inquiry, you are advised that Section 1103(g) applies to restrict former public officials /public employees. Section 1103(g) would not impose restrictions upon PennDOT. Your second specific inquiry regarding work in districts other than Engineering District 6 -0 has been addressed above. As noted above, the restrictions of Section Wendel, 99 -502 January 21, 1999 Page 4 1 103(g) would apply to restrict you with regard to all of PennDOT, including but not limited to District 6 -0. In response to your third and fourth specific inquiries, you are advised that Section 1 103(g) would not restrict you with regard to 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 agencies. In response to your final specific inquiry, you are advised as follows. To the extent such pre -bid meetings would be open to the public, you could attend the meetings; however, if your role would go beyond that of a general observer so that you would actually participate, not as a member of the general public but as a representative of your new employer, such representation would be prohibited. To the extent such pre -bid meetings would not be open to the public and you would be attending in your capacity with your new employer, such would constitute prohibited representation of the new employer 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 1 103(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 a Professional Engineering Assistant to the District Construction Engineer in P Engineering District 6 -0, in which position you are classified as a Senior Civil Engineer Manager, you would be considered a "public_ employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt seg. 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, including but not limited to Engineering District 6 -0. 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 Wendel, 99 -502 January 21, 1999 Page 5 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 persona/ appearance before the Commission will be scheduled and a forma/ 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. Vincent J. opko Chief Counsel