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HomeMy WebLinkAbout99-616 MillerRobert C. Miller, P.E. 750 Grove Street Roaring Spring, PA 16673 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL October 7, 1999 99 -616 Re: Former Public Employee; Section 1 103(g); Division Chief; Senior Civil Engineer Manager; PennDOT; Engineering Consulting Firm . Dear Mr. Miller: This responds to your letter of September 9, 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 .egg., presents any restrictions upon employment of a Division Chief for the Quality Assurance West Division, classified as a Senior Civil Engineer Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: On January 6, 2000, you will retire as Division Chief for the Quality Assurance West Division, classified as Senior Civil Engineer Manager, for PennDOT. Your duties consist of assisting the Director of the Bureau of Construction and Materials in the administration of PennDOT's quality assurance and construction programs. You direct the Quality Assurance West staff's independent overview of PennDOT's acceptance procedures required by the Federal Highway Administration and assist in the mitigation of highway claims on PennDOT projects. You have submitted a copy of your job description, which is incorporated herein by reference. You seek employment with L. Robert Kimball & Associates, Inc. ( "Kimball ") in Ebensburg, Pennsylvania as an Inspector -In- Charge. Kimball is an engineering consulting firm which has been engaged by the Blair County Convention & Sports Facilities Authority ( "Authority ") to represent its interests in the construction of an access road, access bridge, and roadway around the convention center to be constructed at the same time under another contract. Kimball's project is a local municipal project which will receive 80% of its funding from the federal government and 20% from PennDOT. PennDOT will prepare the local contract for the Authority, create a construction management system contract number, and assist the Authority by processing estimate payments through their computer system. PennDOT will also advise the Inspector -In- Charge as required by the Federal Highway Administration in accordance with the Procedures for the Administration of Municipal Projects of the National Highway FAX: (717) 787 -0806 • Web Site: www.ethics.state.Da.us • e -mail: ethics @state.pa.us Miller, 99 -616 October 7, 1999 - Page 2 System. The Authority will be responsible for administering the contract. Although Kimball's project is a local municipal project and the completed facilities will not belong to the State, the Federal Highway Administration requires PennDOT oversight in order for Cymbal to receive federal funds. You seek "approval" under Section 1103(g) of the Ethics Act, to accept employment with Kimball as Inspector -In Charge after you retire from PennDOT. Discussion: As a Division Chief for the Quality Assurance West Division, classified as a Senior Civil Engineer 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 § 1 1.1. 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 would become a "former public employee" subject to Section 1103(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 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. Miller, 99 -616 October 7, 1999 - Page 3 "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. 65 Pa.C.S. §1102. 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 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. Miller, 99 -616 October 7, 1999 - Page 4 The governmental body with which you would be associated upon termination of public service would be 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. Having set forth all of the above restrictions, it is clear that although the Ethics Act would not preclude you from accepting employment with Kimball, it would restrict your conduct in your new position to the extent that such conduct would constitute representation before PennDOT. As a practical matter, it would appear to be impossible for you to perform the functions as an Inspector -In- Charge without transgressing Section 1103(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. See, Lonq, Opinion No. 97- 010. Ldat5. Although it might be argued that Stanisic and Lonq are distinguishable from the instant matter because the project in this case is not a PennDOT project, the principles set forth in those cases still have application to this case. Since the Federal Highway Administration requires PennDOT oversight on Kimball's project, you may have interaction with PennDOT which would constitute prohibited representation. As noted, Section 1103(g) of the Ethics Act would restrict your interaction with PennDOT to the extent that such activity would constitute "representation" of "persons" (including Kimball) before PennDOT for one year after you leave that body. 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 1 103(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: As a Division Chief for the Quality Assurance West Division, classified as a Senior Civil Engineer Manager, for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a "public Miller, 99 -616 October 7 1999 - Page 5 employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 aga. ( "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. 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 ,T. Dopko Chief Counsel