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Home My WebLink About99-576-C MundorfDuane E. Mundorf 5256 Meadowbrook Drive Mechanicsburg, PA 17055 Dear Mr. Mundorf: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 10, 1999 99 -576C Re: Former Public Employee; Section 1103(g); Roadway Program Manager; Maintenance; PennDOT; Clarification of Advice. This responds to your letter of August 10, 1999, by which you requested clarification of Mundorf, Advice No. 99 -576 issued July 9, 1999. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt egg,., presents any restrictions upon employment of a Roadway Program Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: By FAX dated June 7, 1999, you initially sought an advisory from the State Ethics Commission with regard to the restrictions that would be imposed upon you by the Ethics Act following termination of your service as a Roadway Program Manager for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). In response to your request, Mundorf, Advice No. 99 -576 was issued to you on July 9, 1999, which Advice is incorporated herein by reference. You now seek clarification regarding one particular conclusion in the said Advice. Specifically, the Advice stated that as a practical matter, it would appear to be impossible for you to perform the functions for your proposed new employer on PennDOT projects without transgressing Section 1 103(g). See id., at 3 -4 (Quoting Stanisic, Opinion No. 98 -004). You believe that the Advice was issued to you under a misconception that like the requestor in Stanisic, you would in your new position be performing the functions of a Construction Inspector on PennDOT projects for a consulting firm. You state that such is not the case. Rather, in the position with the consulting firm, you would be responsible for recruiting consultant construction inspectors, assigning construction inspectors to PennDOT projects, providing tools and supplies to those inspectors, and reviewing and approving their time sheets and expense reports relative to a pre- existing contract with PennDOT. You assure the Commission that during the performance of these responsibilities your name would not appear on any proposals, contracts, agreements or invoices to PennDOT. Based upon your clarification of the facts, you request clarification of the Advice in this limited regard. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us Mundorf, 99 -576C September 10, 1999 Page 2 Discussion: As noted in Mundorf, Advice No. 99 -576, in your capacity as a Roadway Program ` Manager 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. Thus, upon termination of your public service with PennDOT, you would in fact become a "former public employee" and you would be subject to the restrictions of Section 1103(g) of the Ethics Act. The restrictions of Section 1103(g) are accurately set forth in the Advice of Counsel. The only question that is to be addressed in this clarification of the Advice is whether the Advice incorrectly concluded that as a practical matter, it would appear to be impossible for you to perform the functions of your proposed position with the consulting firm without transgressing those restrictions. You have factually clarified that you would not be performing the functions of a Construction Inspector on PennDOT projects for the new consulting firm, but rather, would be recruiting and assigning construction inspectors to PennDOT projects, providing tools and supplies to them, and reviewing and approving their time sheets and expense reports relative to a preexisting contract with PennDOT. You have assured the Commission that in performing these responsibilities, your name would not appear on any proposals, contracts, agreements or invoices to PennDOT. Given your clarification as to the actual duties that you would be performing in the position with the consulting firm, Mundorf, Advice No. 99 -576 is clarified as follows. Conditioned upon the assumption that in performing the duties of the proposed position with the consulting firm, you in fact would not engage in prohibited representation before PennDOT, for example, by meeting with PennDOT or by having your name appear on documents going to PennDOT, it would be possible for you to perform the duties of such position without transgressing Section 1103(g) of the Ethics Act. 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: As a Roadway Program Manager 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 sea. ( "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 would be PennDOT in its entirety. The restrictions of Section 1103(g) as outlined in Mundorf, Advice No. 99 -576 must be followed. However, given your clarification as to the actual duties that you would be performing in your proposed new position with a consulting firm, Mundorf, Advice No. 99 -576 is clarified as follows. Conditioned upon the assumption that in performing the duties of the proposed position with the consulting firm, you in fact would not engage in prohibited representation before PennDOT, for example, by meeting with PennDOT or by having your name appear on documents going to PennDOT, it would be possible for you to perform the duties of such position without transgressing Section 1 103(g) of the Ethics Act. 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. Mundorf, 99 -576C September 10, 1999 Page 3 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 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. cerely, cent J. Dopko Chief Counsel