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Home My WebLink About99-518 RaoHarish Rao 3123 Wheatlyn Rd. York, PA 17402 Dear Mr. Rao: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL March 8, 1999 Re: Former Public Employee; Section 1 103(g); Senior Civil Engineer; Civil Engineer 3; PennDOT; Advice of Counsel 98 -581. This responds to your e-mail messages of February 12 and 16, 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 at seq., presents any restrictions upon a former public employee with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), currently employed by an engineering firm, regarding working on Commonwealth projects prior to the conclusion of the one -year period following termination of Commonwealth employment if the former public employee's name would not appear on State invoices until after the conclusion of the one -year period. Facts: You retired from your position as Senior Civil Engineer for PennDOT on April 17, 1998. Parenthetically, on July 22, 1998, you were issued Advice of Counsel No. 98- 581, which ruled that you would be considered a "former public employee" subject to Section 3(g)/1 103(g) of the Ethics Act. The Advice outlined the restrictions that would apply to you under Section 3(g)/1 103(g) for a period of one year following termination of Commonwealth employment. You are interested in working for an engineering firm which would hire you full time on or about April 17, 1999, which date would be one year from the date of your retirement from PennDOT. You ask for an advisory from the State Ethics Commission as to whether you may work on State projects for said engineering firm prior to April 17, 1999 if your name would not appear on invoices to the Commonwealth until May 1, 1999. You further state that "this Ethics Law that is imposed on [you] for bettering [yourself] is absurd" and ask how you can be considered a threat to the private sector or citizens of Pennsylvania by being out of work and without income for one year. In your second e -mail of February 16, 1999, you ask the Commission to explain in layman's terms why you are "exiled for 1 year from State invoices." FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us 99 -518 Rao, 99 -518 March 8, 1999 Page 2 Discussion: In the former capacity as Senior Civil Engineer, Civil Engineer 3 for PennDOT, you were considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission, as per a review of your job description. See, 65 Pa.C.S. §1102; 51 Pa. Code. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. As noted in the prior Advice, 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) Fortner 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: 65 Pa.C.S. §1102. 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. Advice of Counsel 98 -581, which found that your former governmental body was PennDOT in its entirety and which outlined the restrictions of Section 1 103(g) of the Ethics Act, is incorporated herein by reference as if fully set forth. As to the specific question you pose, the fact that your employer would submit invoices to PennDOT containing your name on or after May 1, 1999 would not be Rao, 99 -518 March 8, 1999 Page 3 prohibited since at that point the one -year prohibition of Section 1 103(g) of the Ethics Act would have expired. However, if you were to work on PennDOT projects prior to the expiration of the one -year period of Section 1 103(g) of the Ethics Act such that you would be representing your employer on that PennDOT project, such action would be prohibited under Section 1103(g). Regarding your criticism of the one -year prohibition, this statutory provision was enacted by the General Assembly of the Commonwealth to prevent the so- called "revolving door," that is, where a public official /employee terminates employment and walks out the door of public service and within the first year walks back into his former governmental body "representing" his new employer. The State Ethics Commission did not enact the Ethics Act which was passed by the General Assembly; the State Ethics Commission merely administers the Act but has no power to change it or to grant exceptions where none exist. See, Richardson, Opinion No. 93 -006 The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: In the former capacity as a Senior Civil Engineer, Civil Engineer 3 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 seq. ( "Ethics Act "). Following termination of service with PennDOT, you became 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 outlined above and in Advice of Counsel 98 -581 must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), an 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, provided 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 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(17). 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, vl-c.9}4 incent J. opko Chief Counsel