HomeMy WebLinkAbout99-554 LantzAron J. Lantz
RR1 Box 578
Williamsport, PA 17701
Dear Mr. Lantz:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1-800- 932 -0936
ADVICE OF COUNSEL
May 25, 1999
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us
99 -554
Re: Former Public Employee; Section 1103(g); Highway Draftsman Designer;
Engineering District 3 -0; PennDOT.
This responds to your letter of April 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 e# seq., presents any restrictions upon employment of a Highway
Draftsman Designer following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: You were employed as Highway Draftsman Designer for Engineering District
3 -0 of PennDOT until you resigned effective April 23, 1999. Your duties with PennDOT
involved engineering calculation, drafting and other design work under direct supervision
of a Senior Civil Engineer Supervisor. At no time were you involved with selection of
any consultants working for PennDOT.
You will begin employment with an engineering consultant in the City of
Williamsport that has done engineering work for municipalities, PennDOT and other state
and federal agencies. Much of this work utilizes monies from state liquid fuel funds,
federal and various state and local programs. This firm currently has engineering
agreements with PennDOT in Districts 3- 0(Montoursville), 5- 0(Allentown), 8-
0(Harrisburg) and 9- 0(Hollidaysburg).
Inquiry is made regarding activities in your new position with that firm as an
Engineering Technician. You ask whether you may market and offer services to PennDOT
in other districts outside of District 3 -0, and if so, what limitations, would be imposed
on your working with municipaliti s utilizing federal highway finds, state funds, or liquid
fuels inside or outside District 3 -0?
Discussion: In the former capacity as Highway Draftsman Designer 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;
Lant4, 99 -554
May 25, 1999
Page 2
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 1103(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 govemmental body with
which he has been associated ":
65 Pa.C.S
The
official or
Ethics Act
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
aovernmental body with which he has been associated for
one year after he leaves that body.
. §1103(g) (Emphasis added).
terms "represent, ". "person," and "governmental body with which a public
public employee is or has been associated" are specifically defined in the
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.
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
Lantz, 99 -554
May 25, 1999
Page 3
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
govemmental 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 "govemmental 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; SiroII(, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The govemmental body with which you are associated upon termination of public
service is PennDOT in its entirety. 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.
As to the specific questions your have posed, you may n offer your services to
PennDOT, either within or without District 3 -0, as either an employee of a new employer
or as a consultant. In offering such services you would be representing your new
employer which would be prohibited. See, Lonq, Opinion 97 -010. Likewise, if you would
offer such services as a consultant, such representation of yourself would also be
prohibited, See, Confidential Opinion 93 -005.
You could offer such services to municipalities provided you would not have a
situation where you would be representing a person, that is, a governmental body,
employer or yourself as a consultant, before your former governmental body, PennDOT.
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 1103(b) and 1103(c) of the Ethics
Lantz, 99 -554
May 25, 1999
Page 4
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 Highway Draftsman Designer 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 leg. ( "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 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 1107(11), 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
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. Dopko
Chief Counsel