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HomeMy WebLinkAbout99-570 NutbrownHenry N. Nutbrown Port Authority 2235 Beaver Avenue Pittsburgh, PA 15233 -1080 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 6, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us 99 -570 Re: Former Public Employee; Section 1103(g); District Engineer; PennDOT. Dear Mr. Nutbrown: This responds to your letter of June 1, 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 el seq., presents any restrictions upon the employment of a District Engineer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: After 33 years of service, you retired from PennDOT on July 31, 1998. Your last 14 years of employment was as a District Engineer for District 11-0 comprising Allegheny, Beaver, and Lawrence Counties. You are now employed by the Port Authority of Allegheny, the transit provider within the County, as Assistant General Manager of Engineering and Construction. You did not request advice earlier since you did not believe it to be relevant given the Port Authority was created by an act of the General Assembly as an agency of the Commonwealth and is closely tied to PennDOT in many ways. PennDOT is the agency which is broadly responsible for transportation throughout Pennsylvania while Port Authority is the agency that provides the actual transit service. The two public agencies have a complementary rather than a competitive relationship. The Port Authority receives funding from the Federal Transit Administration (FTA), the Commonwealth, and Allegheny County with funds occasionally transferred from FHWA to FTA. PennDOT administers the FHWA funding as well as the general fund revenues from the Commonwealth passed on to the Port Authority. Although PennDOT transacts these funds, you were never in a position at PennDOT to provide or grant money to the Port Authority. In your new position as Assistant General Manager of Engineering and Construction, you are responsible for overseeing the design and construction of the Port Authority's major capital projects such as the West Busway as well as smaller maintenance efforts like the escalator replacement program for the downtown subway. Nutbrown, 99 -570 July 6, 1999 Page 2 You recently assisted PennDOT through a series of public informational meetings that were related to work PennDOT would be performing on the Fort Pitt Bridge. Your role was to explain about projects the Port Authority was completing and how transit in general would be a major mitigation for traffic congestion during construction of the various phases of the Fort Pitt Bridge. You also give some examples of how the Port Authority and PennDOT work together, as for example, the design of a railroad bridge by the Port Authority that will be constructed by PennDOT and the environmental reassessment and preliminary engineering for the Stanwix Street Bridge which will be funded by PennDOT. After stating that it would be difficult in terms of cooperating with Commonwealth agencies and directing such activities if you were not able to interface with PennDOT, you have been informed that you may not be able to conduct any business with PennDOT for at least one year from your retirement date as a result of your previous employment with PennDOT. Given the roles and responsibilities of your former and current positions and the fact that your current employment is with another state agency, you seek clarification that your position with the Port Authority does not constitute a conflict of interest that would limit your ability to effectively manage and oversee the Port Authority's capital projects. Discussion: It is noted that, pursuant to Sections 1107(10) and (1 1) of the Ethics Act, 65 Pa.C.S. §1107(10), (11), an opinion /advice may given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. In the former capacity as District Engineer 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 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 1 103. 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 Nutbrown, 99 -570 July 6, 1999 Page 3 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 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 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. Nutbrown, 99 -570 July 6, 1999 Page 4 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. Nevertheless, you seek a favorable ruling given that your position with the Port Authority is with another governmental agency. The Commission held in Ledebur, supra that the restrictions of Section 1103(g) applied even if the public employee left one governmental body to be employed by another governmental body. The Commission also held in Long, Opinion 97 -010 that a PennDot Construction Manager was prohibited from being employed in the private sector as a Construction Inspector /Supervisor on PennDOT projects. See also, Johnson, Opinion 99 -002. Thus, to the extent that your actions on behalf of the Port Authority would constitute representation before PennDOT as detailed above, such action would be prohibited by the Ethics Act. 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 1 103(a) of the Ethics Act. Further, you are advised that Sections 1103(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. Nutbrown, 99 -570 July 6, 1999 Page 5 Conclusion: In the former capacity as a District Engineer 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 et seq. ( "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 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 'h Dopko Chief Counsel