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HomeMy WebLinkAbout99-535 IckesJames L. Ickes 163 S. Imler Valley Rd. Osterburg, PA 16667 Dear Mr. Ickes: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL April 9, 1999 Re: Former Public Employee; Section 1103(g); Traffic Control Specialist Supervisor; District 9 -0; PennDOT; Outside Employment This responds to your letter of March 11, 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 .gt., presents any restrictions upon employment of a Traffic Control Specialist Supervisor following termination or continuation of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: On December 25, 1998, you retired from your position as Traffic Control Specialist Supervisor after 20 years of service with PennDOT District 9 -0 in Hollidaysburg. You have submitted a copy of your former job description, which document is incorporated herein by reference. You have been offered the position of Foreman with Dixon Electric, a private contractor, where you would be responsible for directing the installation of traffic signals and highway lighting on state, municipal, and turnpike projects, involving the installation of conduit, pole foundations, poles, signals, and related signs. You would not be involved in any design or approval of equipment and do not anticipate working for Dixon Electric in PennDOT District 9 -0. In addition, you have been rehired by PennDOT on an emergency basis for "up to 95 occurrences," ending on June 30, 1999. Under that program, you may work up to 95 "days" in a fiscal year with a "day" being defined as 4 hours or more. PennDOT witholds taxes and Social Security but not retirement or hospitalization /health from your pay. You ask for an advisory from the State Ethics Commission as to any restrictions that would be placed on your employment. In particular, you would like to know whether you could work for both PennDOT and Dixon Electric, or leave PennDOT and work solely for Dixon Electric which may do work on some PennDOT projects. You state that you will terminate your temporary PennDOT employment if it is a conflict. FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -535 Ickes, 99 -535 April 9, 1999 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and (1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Since you ask whether there are any restrictions under the Ethics Act if you were to work in either position (or both), we shall first consider the situation if you would leave PennDOT employment and then work solely for Dixon Electric. We will then consider the issue of your working both for PennDOT and Dixon Electric. In the former capacity as a Traffic Control Specialist Supervisor for PennDOT, and in your current capacity, 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 would become a "former public employee" subject to Section 1103(g) of the 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. 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. Ickes, 99 -535 April 9, 1999 Page 3 65 Pa.C.S. §1102. "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. 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 -011. 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 Ickes, 99 -535 April 9, 1999 Page 4 Id, at 5 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 be 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. As to your termination of service with PennDOT and subsequent rehiring on an emergency basis, you once again became a public employee. If you terminate employment on June 30, 1999, or some other date, you once again would become a former public employee. Although Section 1103(g) of the Ethics Act would not prohibit you from accepting the position with the private contractor, you could not "represent" your new employer before PennDOT. As a practical matter, it would appear to be impossible for you to perform the functions for your new employer on PennDOT projects without transgressing Section 1 103(g). As the Commission held in Stanisic, Opinion 98 -004: We similarly conclude, as did the Advice of Counsel, that during the first year following termination of your employment with PennDOT, it would be impossible as a Construction Inspector working for a consulting firm on PennDOT project(s), without transgressing Section 3(g). In performing inspections of such project(s), you would be acting on behalf of your new employer and would necessarily engage in prohibited representation before your former governmental body, PennDOT. See, Long, Opinion no. 97 -010. If you were to continue employment with PennDOT on an emergency basis and also accept employment with Dixon Electric, you would be a public employee who has an outside business interest in the form of employment with Dixon Electric. Section 3(a) of the Ethics Law does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position — or confidential information obtained by being in that position — for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -01 1. Examples of conduct that would be prohibited under Section 3(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 3(j). Ickes, 99 -535 April 9, 1999 Page 5 Under the facts which you have submitted, Section 3(a) of the Ethics Law would not preclude you as a PennDOT employee from having outside employment with Dixon Electric subject to the restrictions and qualifications as noted above. 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. 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 Traffic Control Specialist Supervisor 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 gi. ( "Ethics Act "). If you would terminate service with PennDOT, you would become a "former public employee" subject to Section 1 103(g) of the Ethics Act. The restrictions as to representation outlined above must be followed. Your governmental body would be PennDOT in its entirety. If you do not terminate employment with PennDOT and also work for Dixon Electric, such employment would be permitted but the restrictions as to Section 1 103(a) noted 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), 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 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 Ickes, 99 -535 April 9, 1999 Page 6 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, incerely, t,,, * Vincent . Dopko Chief Counsel