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HomeMy WebLinkAbout99-599 SandruckSterling Sandruck 507 Monocacy Trail Spring Grove, PA 17362 Re: Former Public Employee; Section 1103(g); County Equipment Manager; Highway Equipment Manager 2; PennDOT. Dear Mr. Sandruck: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 7, 1999 99 -599 This responds to your letter of August 5, 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 DI seq., presents any restrictions upon employment of a County Equipment Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: On January 15, 1999, you retired from your position as County Equipment Manager of Maintenance District 8 -4, York County. You had held this position for seventeen years. You state that the position involved supervising and directing PennDOT employees in repairing and maintaining PennDOT equipment in the County, and that at no time were you involved with financial arrangements or contacts with consulting engineers involved with highway construction. You have submitted a copy of your job description, which is incorporated herein by reference. It is noted that your job classification was Highway Equipment Manager 2, and your duties included planning, directing, and supervising all of the purchasing, - repair, maintenance and assignment of equipment from your Maintenance District's Fleet. Having retired from PennDOT, you are now interested in seeking employment with a consulting engineering firm for the purpose of performing duties as an inspector on highway construction. You seek a "waiver" of Section 1 103(g) of the Ethics Act, so that you may pursue this type of employment with a consulting engineering firm. Discussion: In the former capacity as a County Equipment 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. This conclusion is based upon the job description, which when reviewed on an FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Sandruck, 99 -599 September 7, 1999 Page 2 65 Pa.C.S. §1102. 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 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 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 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 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. Sandruck, 99 -599 September 7, 1999 Page 3 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. 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 have been associated upon termination of public service is PennDOT in its entirety, including but not limited to Maintenance District 8 -4. 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 in its entirety. Turning to your specific request for a "waiver," you are advised that the Ethics Act does not provide for waivers of the applicability of the restrictions of Section 1103(g). The State Ethics Commission does not have the authority to grant that which is not authorized by law. See, Richardson, Opinion No. 93 -006; Ziegler, Opinion No. 98 -001. As the Commission stated in Ziegler, supra: Sandruck, 99 -599 September 7, 1999 Page 4 J. at 6. [T]his Commission is duty -bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section 3(g) restrictions to apply to All former public officials /public employees. There is no mention in the statute of any "variances" or "exceptions." Obviously, the facts in any given case may be more or Tess compelling than in others, but the law must be applied fairly and uniformly. Similarly, in your case, the State Ethics Commission would not have the power to grant a "waiver" of the Section 1103(g) restrictions because such are not authorized by 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 County Equipment 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 g# sea. ( "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 Ethics Act does not provide for waivers of the applicability of the restrictions of Section 1103(g). 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. Sandruck, 99 -599 September 7, 1999 Page 5 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, D(, Vincent opko Chief Counsel