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HomeMy WebLinkAbout99-565 RowanJames J. Rowan, III, P.E. 120 Governors Drive Wallingford, PA 19086 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL June 30, 1999 99 -565 Re: Former Public Employee; Section 1103(g); District Bridge Engineer; Senior Civil Engineer Manager; Civil Engineer 5 (Bridges); PennDOT. Dear Mr. Rowan: This responds to your letter of May 25, 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 fig., presents any restrictions upon employment of a District Bridge Engineer, classified as a Senior Civil Engineer Manager (Civil Engineer 5), following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: As of June 11, 1999 you are resigning from your position as the District Bridge Engineer for Engineering District 6 of PennDOT, to accept employment with an area consulting engineering firm. Copies of your job description, job classification specifications, and organizational chart have been obtained from PennDOT and are incorporated herein by reference. It is noted that in your position as the District Bridge Engineer for Engineering District 6 of PennDOT you have been classified as a Senior Civil Engineer Manager (Civil Engineer 5 (Bridges)). You are requesting advice as to the following three areas: (1) involvement with bridge and culvert inspections; (2) engineering activities funded by liquid fuel tax expenditures for municipal and county governments; and (3) involvement with PennDOT design work. You state that federal law requires regular safety inspection of all bridges (structures with spans of 20 feet or more) which are situated on roads open for public use. The Federal Highway Administration (FHWA) reimburses local governments for 80% of the cost to inspect and prepare reports that document the condition of their bridges. The remaining 20% cost is borne by the local government. PennDOT, acting as agent for FHWA, is involved in local bridge inspection activities in at least one and many times in two ways, financial and technical. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Rowan, 99 -565 June 30, 1999 Page 2 Under the jurisdiction of the District Bridge Engineer, PennDOT reviews the reasonableness of the cost to inspect and prepare the condition reports and is a conduit to reimburse federal funds to local governments for these activities. PennDOT also determines the adequacy and completeness of the reports before a summary of the inspection results is sent to the FHWA. Inspection of culverts (structures with spans less than 20 feet) are not subject to Federal regulation and condition reports are not submitted to either PennDOT or the FHWA. You state your presumption that either representing a local government or participating in safety inspections and report preparation activities for bridges would be a prohibited activity for you as a former public employee, for a one year period. However, you note that some local governments choose not to participate in the 80% FHWA reimbursement program. You pose two questions: (1) whether you could be involved in either representing a local government or participating in safety inspection and report preparation activities for bridges where the local government would choose not to participate in the 80% FHWA reimbursement program; and (2) whether, pursuant Section 1103(g), you could be involved with culvert inspections on behalf of local government organizations. Your second area of inquiry involves liquid fuel tax expenditures by local governments. You state that PennDOT distributes state gas tax revenue to municipal governments based upon a prescribed formula established by the Legislature. Additionally, PennDOT is obligated to monitor liquid fuel tax expenditures by local governments to verify that funds are being spent on highway - related activities. Such activities range from purchasing maintenance or construction equipment to preparing design plans and funding construction of road and bridge work. You state that because of your former public employee status, it is apparent that involvement with inspection, design, construction or maintenance activities funded entirely or in part by liquid fuel tax funds would be a prohibited activity for one year. However, you note that there are local road and bridge projects that are funded by general revenues or block grants from sources other than PennDOT and are not subject to review or monitoring by PennDOT. You ask for confirmation or clarification of the legality of your involvement with inspection of culverts and design, construction or maintenance activities for bridges or culverts on behalf of a local government where federal or state transportation funds or liquid fuel tax funds are not used. Your final area of inquiry involves the timing when direct involvement with PennDOT work as a consultant would be permitted. You ask whether your name may appear in a proposal to do work for PennDOT before the one year period of applicability of Section 1103(g) has expired if, by PennDOT's own schedule, the notice -to- proceed work date is after the one year period will have elapsed. Discussion: In the former capacity as the District Bridge Engineer for Engineering District 6 of PennDOT, classified as a Senior Civil Engineer Manager (Civil Engineer, 5 (Bridges)), 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. Rowan, 99 -565 June 30, 1999 Page 3 Consequently, upon termination of public service, you would become a "former public employee" subject to Section 1 103(g) of the Ethics Act. The restrictions of Section 1 103(g) shall initially be set forth, and then your specific inquiries shall be addressed. 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: 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. 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 Rowan, 99 -565 June 30, 1999 Page 4 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 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 have been associated upon termination of public service is PennDOT in its entirety, including but not limited to Engineering District 6. 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. Your specific inquiries shall now be addressed. In response to the questions posed as to your first and second areas of inquiry, regarding the representation of local governments and /or involvement with inspection, report preparation, design, construction or maintenance work as to bridges or culverts where due to the funding sources, PennDOT would not be involved, you are advised that conditioned upon the assumptions that your proposed involvement would in fact not involve representation before PennDOT in any way and that you would be able to perform such duties within the restrictions of 1 103(g) as set forth above, the Ethics Act would not prohibit the proposed conduct. Rowan, 99 -565 June 30, 1999 Page 5 In response to your final area of inquiry involving the timing aspect, specifically whether your name may appear on a proposal to do work for PennDOT before the one year period of applicability of Section 1103(g) has expired if, by PennDOT's own schedule, the notice -to- proceed work date is after the one year period will have elapsed, you are advised that such inclusion of your name on the proposal would be prohibited. The statutory definition of "represent" specifically includes as an example of prohibited conduct under Section 1103(g) the submitting of bid or contract proposals which are signed by or contain the name of the former public official or public employee. Under the question as you have posed it, your name would appear in a proposal submitted to PennDOT during the one year period of applicability of Section 1 103(g), and therefore such would be expressly prohibited by Section 1 103(g) of the Ethics Act. 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 1 103(a) of the Ethics Act. Further, you are advised that Sections 1103(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. 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 District Bridge Engineer for Engineering District 6 of 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 5_0_ . ( "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 would be PennDOT in its entirety, including but not limited to Engineering District 6. 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), 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. Rowan, 99 -565 June 30, 1999 Page 6 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. 6v-,f rely, Vincent .):' Do ko Chief Counsel