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HomeMy WebLinkAbout99-508 NangleGrant C. Nangle 48 -15 Revere Rd. Drexel Hill, PA 19026 STATE 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 February 17, 1999 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec @state.pa.us 99 -508 Re: Former Public Employee; Section 1103(g); Central Office Review Appraiser; Real Estate Appraiser III; District 6 -0; PennDOT. Dear Mr. Nangle: This responds to your letter of January 19, 1999 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 sue., presents any restrictions upon employment of a Central Office Review Appraiser, classified as a Real Estate Appraiser III, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: After 37 years of service, you retired on September 2, 1998 from your position as a Central Office Review Appraiser, classified as a Real Estate Appraiser III, in PennDOT Department District 6 -0 in St. Davids and King of Prussia, which position you had held for 14 years. You state that "the department changed its certification requirements for the position of Real Estate Appraiser III" and you chose to retire rather than be required to commute 200 miles from Drexel Hill to Harrisburg on a daily basis. In your position as a Central Office Review Appraiser, classified as a Real Estate Appraiser III, your responsibilities were to review and approve "estimated just compensation" offers for Department claimants in your assigned districts, which included the eastern part of Pennsylvania from Philadelphia to Scranton and you were directly responsible for reviewing and resolving differences in appraisals that did not meet Federal and State appraisal standards. You have submitted a copy of your job description, which document is incorporated herein by reference. Following your retirement from PennDOT, you were contacted by Thomas Campion, Project Manager for Presnell Associates ( "Presnell "), an engineering and right - of -way consulting firm, regarding your working for Presnell as a "right -of -way consultant" on state projects. In that position, your responsibilities would include preparing scope of work analyses for appraisal assignments and answering questions regarding appraisal problems. You state that there would be no conflict between your proposed duties with Presnell and your past responsibilities with PennDOT and that you would not be involved with any projects on which you worked or with which you had contact while employed by PennDOT. Nangle, 99 -508 February 17, 1999 Page 2 You request an "employment waiver" from the State Ethics Commission so that you may accept employment with Presnell "prior to the usual one -year waiting period after state service." Discussion: In the former capacity as a Central Office Review Appraiser, classified as a Real Estate Appraiser III for PennDOT, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See 65 Pa.C.S. §1102; 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 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 became 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 Nangle, 99 -508 February 17, 1999 Page 3 65 Pa.C.S. §1102. 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 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 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 were 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. Nangle, 99 -508 February 17, 1999 Page 4 In response to your request for an "employment waiver," Section 1103(g) applies for a one -year period following termination of the public service in question and there is no basis in the statute for granting any waiver as to the one -year restriction. The State Ethics Commission does not have the authority to grant that which is not authorized by law. See, Richardson, Opinion No. 93 -006; Ziegler, Opinion No. 98 -001. As the Commission stated in Ziegler, supra: [T]his Commission is duty -bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section 3(g) restrictions to apply to all former public officials /public employees. There is no mention in the statute of any "variances" or "exceptions." Obviously, the facts in any given case may be more or less compelling than in others, but the law must be applied fairly and uniformly. W. at 6. Similarly, in your case, the State Ethics Commission would not have the power to grant a "waiver" of the Section 1103(g) restrictions because such are not authorized by the Ethics Law. However, as noted above, Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment, but it restricts the former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(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 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: In the former capacity as a Central Office Review Appraiser, classified as a Real Estate Appraiser III 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, 65 Pa.C.S. §1101 e# MI. ( "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 is 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 1 107(1 1), 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 Nangle, 99 -508 February 17, 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 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. erely, V incent Dop o Chief Counsel