Loading...
HomeMy WebLinkAbout99-632 LaskoJohn D. Lasko, P.G. Michael Baker Jr., Inc. 4301 Dutch Ridge Road Beaver, PA 15009 Dear Mr. Lasko: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL November 30, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -632 Re: Former Public Employee; Section 1103(g); Assistant District Geotechnical Engineer; Geologist 2; Design /Services; PennDOT. This responds to your letters of October 16, 1999 and October 25, 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 mi., presents any restrictions upon employment of an Assistant District Geotechnical Engineer classified as a Geologist 2 following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: As a former Assistant District Geotechnical Engineer for PennDOT, you seek an advisory from the State Ethics Commission regarding the applicability of the Ethics Act's "revolving door provision," 65 Pa.C.S. §1103(g), to you. You state that from November, 1988 to October 9, 1998, you were employed as a Geologist for Michael Baker Jr., Inc. ( "Baker ") and worked in that company's Geotechnical Unit within the Civil Engineering Division located in Beaver, Pennsylvania. Your employment with PennDOT commenced in October, 1998. You initially worked as a Geologist 1 for PennDOT in the District 1 1 -0 Geotechnical Unit. In 1999, you were promoted to Geologist 2 within that same Unit. You have submitted copies of your job descriptions for your said former positions as Geologist 1 and Geologist 2, which documents are incorporated herein by reference. On September 24, 1999, you resigned from your employment with PennDOT and returned to work for Baker in the same position that you previously held. Before you left PennDOT, you were informed that the Ethics Act prohibits a former public official /public employee from engaging in prohibited representation before the former governmental body during the first year after leaving the public position. It is your contention that you were a "lower echelon public employee" at PennDOT and were not a major decision maker. Lasko, 99 -632 November 30, 1999 Page 2 You state that your responsibilities as a Geologist 1 and Geologist 2 for PennDOT were similar, with no difference in the responsibilities or work tasks that your supervisor, the District Geotechnical Engineer ( "DGE "), asked you to perform. You state that your work tasks included the following: (1) reviewing mine variance permits for geotechnical aspects according to the Department Mining Handbook and associated State laws; (2) reviewing Highway Occupancy Permits; (3) reviewing waste and borrow areas for the Construction Unit; (4) reviewing Geotechnical Engineering Reports; (5) preparing correspondence to consultants and other District Units; and (6) preparing scopes of work and man -hour estimates for Engineering Services under one of the three Open -End Contracts for Geotechnical Engineering Services with Gannett Fleming Inc., Pittsburgh, Pennsylvania, which contracts were administrated through the District's Design Liaison Unit. You state that the DGE reviewed and signed off on all of your review work and work products, made all major decisions, and signed all correspondence directed to consultants and other District units. You state that the DGE was the ultimate decision maker on all aspects of your work. You say that you never participated in any consultant selection process nor did you participate as a member of any consultant selection committee while you were with PennDOT. You maintain that you were not involved with contracting or procurement, administering or monitoring grants or subsidies, project planning or zoning, inspecting, licensing, regulating or auditing any person, or any other activity where the official action would have an economic impact of greater than a de minimis nature on the interests of any person. Presently, Baker has several projects that directly or indirectly involve interaction with PennDOT. The projects include the following: (1) 31st Street Bridge Project - S.R. 2122, Section A03; (2) East Ohio Street Improvement Project - S.R. 28, Section A09 /A10; (3) Monongahela River Bridge; (4) West End Improvement Project, Section A21; and (5) West End Improvement Project, Section A27. The first two projects involve contracts between Baker and PennDOT which you state existed prior to your working at District 11-0. You worked on both of these projects while you were employed by Baker in 1997 and 1998, and your name appeared on the technical proposals and on invoices for your work on both projects which related to geotechnical engineering design services. The third and fourth projects are bridge projects that involve contracts requiring Baker to provide engineering design services for the Port Authority of Allegheny County. The fifth project is an interchange project involving a contract requiring Baker to provide engineering design services for the Allegheny County Department of Engineering. You state that the Commonwealth of Pennsylvania is funding a portion of the third, fourth and fifth projects. Therefore, PennDOT is required to provide technical reviews of these projects for compliance to various standards and requirements. You pose the following specific inquiries: 1. Whether you would be subject to the restrictions of Section 1103(g) of the Ethics Act based upon what you perceive to be lower Lasko, 99 -632 November 30, 1999 Page 3 level work tasks that you performed and given that you only worked for PennDOT for 11 months; 2. Whether your name may appear on invoices to PennDOT for the first and second projects listed above, since you previously worked on these projects for Baker before you were employed by PennDOT; 3. Whether your name may appear on invoices to the Port Authority of Allegheny County for the third and fourth projects, and if so, whether you may participate in review meetings with PennDOT relative to these projects (You note that if you may work on these projects, it is not necessary for you to participate in review meetings with PennDOT); 4. Whether your name may appear on invoices to the Allegheny Department of Engineering for the fifth project, and if so, whether you may participate in review meetings with PennDOT relative to this project (You state that if it is permissible to work on this project, it is not necessary for you to participate in review meetings with PennDOT); 5. Whether you may participate in meetings with District 1 1 -0 as a representative of Baker on any of the above listed projects; 6. Whether your name may appear on bid proposals for future geotechnical engineering work within District 1 1 -0 prior to expiration of the one year prohibition; 7. Whether your name may appear on future bid proposals for engineering services with PennDOT in any other PennDOT Districts statewide; and 8. Whether your name may appear on future bid proposals for engineering services with the Pennsylvania Turnpike Commission. Discussion: In the former capacity as an Assistant District Geotechnical Engineer classified as a Geologist 2 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. As for your contentions that you only worked for PennDOT for 11 months and performed "lower level work tasks," you are advised that the brevity of your employment is irrelevant, and your 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. Some of your more notable responsibilities included the following: preparing work orders for design projects; preparing designs for roadways and structures; inspecting, implementing, and providing quality assurance for district drilling operations; preparing service purchase contracts for on -call drilling and laboratory testing services; reviewing mine variance applications; participating on committees to select consultants for design and inspection; supervising drilling under health and safety plans (HASP) in areas potentially contaminated with hazardous wastes; independently representing the Geotechnical Unit at scoping field view and other meetings for local and liaison projects; performing reviews and checks of consultants' Lasko, 99 -632 November 30, 1999 Page 4 designs, plans specifications, estimates, etc; independently providing assistance to Construction Unit personnel and Maintenance Unit personnel with geotechnically- related problems /hazards; developing, implementing and coordinating the Geotechnical Engineering Open -End Consultant Contract; and reviewing permits involving geotechnical /geologic work. There is no question that your duties as set forth in your job description would bring you within the definition of "public employee" as set forth in the Ethics Act. Consequently, upon termination of public service, you became 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 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: 65 Pa.C.S. §1102. 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. Lasko, 99 -632 November 30, 1999 Page 5 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 -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 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. The governmental body with which you have been associated upon termination of public service is PennDOT in its entirety including, but not limited to District 1 1 -0. 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. Your specific inquiries shall now be addressed. Lasko, 99 -632 November 30, 1999 Page 6 Your first inquiry regarding your status as a former public employee subject to Section 1 103(g) of the Ethics Act has been fully addressed above. As for your second inquiry regarding the inclusion of your name on invoices to PennDOT for the first and second projects which you say involve preexisting contracts, you are advised that the submission of your name on invoices to PennDOT would transgress Section 1103(g) of the Ethics Act, except as to pre- existing contracts that would not involve the PennDOT unit where you worked, and if required by PennDOT regulations. See, Shay, supra, and Abrams /Webster, supra. As for your third and fourth inquiries, you would not be prohibited from working with municipalities that would utilize federal /state funds within or outside of District 11 -0, 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 to the narrow and limited extent permitted by Webster, supra, as set forth above. The answer would be the same as to services to other state, federal, or local agencies either within or outside of District 11 -0. Section 1 103(g) of the Ethics Act would prohibit you from including your name on invoices submitted to the Port Authority of Allegheny County and the Allegheny Department of Engineering if those invoices would be reviewed by PennDOT. Furthermore, Section 1 103(g) of the Ethics Act would preclude your participating in review meetings with PennDOT relative to the third, fourth and fifth projects because such would constitute "representation" of "persons" (Baker) before PennDOT. As for your fifth inquiry, Section 1103(g) of the Ethics Act would prohibit you from participating in meetings with District 1 1 -0 as a representive of Baker, during the first year following termination of your service with PennDOT. Furthermore, as noted above, the governmental body with which you have been associated upon termination of public service is PennDOT in its entirety, including, but not limited to District 1 1 -0. As to your sixth and seventh inquiries, Section 1 103(g) of the Ethics Act would prohibit the submission of bid proposals to PennDOT that are signed by you or contain your name within the one year period. Such activity would constitute prohibited representation as delineated above. This prohibition would apply to restrict you with regard to all of PennDOT, including, but not limited to District 11-0. As for your eighth inquiry, Section 1 103(g) of the Ethics Act would not preclude you from including your name on future bid proposals for engineering services with the Pennsylvania Turnpike Commission because that entity is not the governmental body with which you have been associated. 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 Lasko, 99 -632 December 7, 1999 Page 7 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 an Assistant District Geotechnical Engineer classified as a Geologist 2 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 at am. ( "Ethics Act "). Upon termination of service with PennDOT, you became a "former public employee" subject to Section 1 103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety including, but not limited to, District 1 1- 0. 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 forma/ 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. Si cerely, Vincent J. D pko Chief Counsel