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HomeMy WebLinkAbout99-582 KennedyKimberly L. Kennedy 1064 Pennsylvania Avenue Harrisburg, PA 17111 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 19, 1999 99 -582 Re: Former Public Employee; Section 1103(g); Assistant District Traffic Engineer; PennDOT. Dear Ms. Kennedy: This responds to your letter of June 17, 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 at seq., presents any restrictions upon employment of a Assistant District Traffic Engineer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You are a former employee of PennDOT Engineering District 8 -0 in Harrisburg. Your last position was as an Assistant District Traffic Engineer, in charge of safety. In this position you answered a number of letters, worked with the local municipalities when they had problems with traffic safety and conducted traffic studies in areas where they had accident problems or complaints. You were not involved with contract work, nor did you have any influence over the awarding of contracts or in the bidding process. You became pregnant in late 1997 and intended to work until your due date. Due to health problems you experienced because of your pregnancy, you began to work part -time on July 9, 1998. Your health problems continued so your obstetrician ordered you to stop working until you had your baby. Your last day of employment with PennDOT was July 13, 1999. You were on sick leave until the birth of your child on August 12, 1998. You then were placed on maternity leave for 8 weeks. You were released to return to work on October 7, 1998, but extended your time off by using annual leave until October 29,1998. At that point you received permission to continue on unpaid family leave for 6 months. You were scheduled to return to work on May 12, 1999. Due to several decisions and adjustments on the part of you and your spouse, you decided to retire from PennDOT. Your effective retirement date from PennDOT was May 12, 1999. You have since taken a part time position with an engineering firm. The firm has asked if you are able to work on PennDOT projects. You have not been involved with PennDOT work since you left in July 1998. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mai': ethics @state.pa.us Kennedy, 99 -582 July 19, 1999 Page 2 You request advice as to your eligibility to work on PennDOT projects. Since you have not had any business contact with PennDOT from July, 1998, you believe that the one year that you are to refrain from working on PennDOT projects should be completed in July 1999. Discussion: In the former capacity as Assistant District Traffic 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 1 103(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. "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 Kennedy, 99 -582 July 19, 1999 Page 3 65 Pa.C.S. §1102. 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 -01 1. 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 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 "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 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before PennDOT. Kennedy, 99 -582 July 19, 1999 Page 4 As to the questions you pose, you are not prohibited from being employed, full or part time, by an engineering firm as noted above. As to your possible employment with an engineering firm which will work on PennDOT projects, Section 1 103(g) of the Ethics Act would not prohibit you from accepting the position with the engineering firm. However, 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 practical matter for you to perform the functions of 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. Id. at 5 Regarding your inquiry as to when the one year prohibition would end, that date would be May 12, 2000. The one year prohibition is not based upon the last day you worked but upon termination of service. In this regard you have stated that your effective retirement date was May 12, 1999. The fact that you were on leave did not start the one year period to run, given that you were still in an employment status. In Mattern, Opinion 98 -007, a former employee of the Department of Environmental Protection challenged the requirement of filing a Financial Interests Statement (FIS) because she was on a leave of absence from January 1997 until she resigned in September 1997. The Commission in concluding that Mattern had to file the FIS noted: j at 3 While on leave, you continued to hold the status of a public employee. Since Section 4(a) contains no exceptions or exemptions based upon leaves of absence, a straightforward application of the law mandates the conclusion that your leave of absence would not abrogate your duty to file. 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 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 Kennedy, 99 -582 July 19, 1999 Page 5 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 Assistant District Traffic 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 el s,_eg. ( "Ethics Act "). Upon termination of service with PennDOT, you became 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 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. erely, Vincent J. : opko Chief Counsel ?At