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HomeMy WebLinkAbout99-631-C KunselmanRobert I. Kunselman 131 Lower Donna Street Hollidaysburg, PA 16648 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL April 3, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 99 -631 -C Re: Former Public Employee; Section 1103(g); District Bridge Engineer; Engineering District 9 -0; PennDOT. Dear Mr. Kunselman: This responds to your letter of March 1, 2000 by which you requested clarifying advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seg., presents any restrictions upon employment of a District Bridge Engineer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: By letter dated October 24, 1999, you initially sought an advisory from the State Ethics Commission with regard to the restrictions that would be imposed upon you as a former District Bridge Engineer for PennDOT. In response to your request, Kunselman, 99 -631 was issued to you on November 29, 1999, which Advice is incorporated herein by reference. You now state that you have officially retired from PennDOT effective February 4, 2000 and have since begun working for the EADS Group consulting engineers in Altoona, Pennsylvania. You seek clarification as to the following questions. 1. Whether you are permitted to work on projects /contracts involving PennDOT District offices other than District 9 that existed prior to your employment with the EADS Group, and whether your name may appear on invoices submitted to PennDOT for your work on such projects /contracts. 2. Whether you are permitted to work on municipal contracts that existed prior to your employment with the EADS Group which involve the use of "Billion Dollar Bridge Program" funds requiring PennDOT's review and approval of the municipality's plans and specifications, and whether your name may appear on invoices submitted to the municipalities where such invoices may be reviewed by PennDOT. Kunselman, 99 -631 -C April 3, 2000 Page 2 3. Whether you are permitted to work on municipal contracts which the EADS Group will enter into during your one year period of restricted activity which involve the use of "Billion Dollar Bridge Program" funds requiring PennDOT's review and approval of the municipality's plans and specifications, and whether your name may appear on invoices submitted to the municipalities where such invoices may be reviewed by PennDOT. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As noted in Kunselman, Advice, 99 -631, as a District Bridge Engineer for PennDOT, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Act. In that Kunselman, Advice, 99 -631 is incorporated herein by reference, the quotations and commentary as to the Ethics Act will not be repeated. As for your first question, you would not be prohibited from working on pre- existing contracts involving PennDOT projects provided that in performing such services, you would not engage in prohibited representation before PennDOT as set forth in Kunselman, Advice, 99 -631. The submission of your name on routine invoices to PennDOT would transgress Section 1103(g) of the Ethics Act, except where the pre- existing contracts would not involve the PennDOT unit where you worked, and PennDOT regulations would require the inclusion of your name on routine invoices. See, Kunselman, at 3. As for your second and third questions, you would not be prohibited from working on pre- existing or existing contracts involving local municipalities that would utilize "Billion Dollar Bridge Program" funds, provided that in performing such services, no prohibited contacts would occur as to PennDOT and no written materials containing your name would be submitted to PennDOT, except within the narrow and limited extent permitted by Webster, as set forth in Kunselman, Advice, 99 -631. Section 1 103(g) of the Ethics Act would prohibit you from including your name on invoices submitted to such municipalities if those invoices would be reviewed by PennDOT. 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 District Bridge 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 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 Kunselman, 99 -631 -C April 3, 2000 Page 3 as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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. cerely, v�r Vincent J. opko Chief Counsel