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Home My WebLink About00-508 Buchyt STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL January 26, 2000 John J. Buchy, Esquire Assistant Counsel PennDOT Office of Chief Counsel Forum Place - 9th Floor 555 Walnut Street 00 -508 Harrisburg, PA 17101 -1900 Re: Former Public Employee; Section 1103(g); Senior Civil Engineer Manager; Construction; PennDOT; Witness; Testify; Compensation. Dear Mr. Buchy: This responds to your letter of December 21, 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 et seq., presents any restrictions upon a former Senior Civil Engineer Manager for PennDOT as to being compensated by PennDOT for the time he spends testifying in a lawsuit on behalf of PennDOT. Facts: As Assistant Counsel for PennDOT, you request an advisory on behalf of Jeffrey W. Wendel (Wendel), a former Senior Civil Engineer Manager for PennDOT. Wendel retired from PennDOT in the summer of 1999. While at PennDOT, Wendel was in charge of the contract administration and inspection of a highway construction project for the construction of Section 300 of the Blue Route (Interstate 476) in Delaware County. James D. Morrissey, Inc. (Morrissey) was the contractor who performed the construction work for that project. Morrissey filed a lawsuit against PennDOT for breach of contract regarding the Section 300 project. Trial is scheduled to commence on February 7, 2000 before the Board of Claims. PennDOT must call Wendel as a fact witness on its behalf regarding the events that occurred during the Section 300 project while he was a PennDOT employee. PennDOT desires to compensate Wendel at his present normal hourly rate for the time he spends testifying at trial. At this time, Wendel is employed as a registered professional engineer with the engineering firm of Urban Engineers, Inc. You request an advisory as to whether the Ethics Act would impose any prohibitions or restrictions upon Wendel as to receiving compensation at his present normal hourly rate for the time he spends testifying for PennDOT as a fact witness in the lawsuit. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa_us Buchv, 00 -508 January 26, 2000 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In the former capacity as Senior Civil Engineer Manager for PennDOT, Wendel 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, Wendel 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 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. Buch , 00 -508 January 26, 2000 Page 3 "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. 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 a are signor contain the ern name of the former public official /employee; (4) participating n any 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 Buchy, 00 -508 January 26, 2000 Page 4 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 Wendel would be associated upon termination of public service would be PennDOT in its entirety. Therefore, for the first year after termination of Wendel's service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before PennDOT. As to the question you pose, you are advised as follows. The Ethics Act would not preclude Wendel from receiving compensation for his testimony in a lawsuit within the one year period of restricted activity since Wendel would be testifying on behalf of PennDOT before the Board of Claims, not his former governmental body. Since such activity would not constitute an attempt to influence his former governmental body, Wendel would not transgress Section 1103(g) of the Ethics Act. If, on the other hand, Wendel would be receiving compensation to participate in a matter on behalf of his new employer before PennDOT, for example, he would necessarily be engaging in prohibited representation as outlined above. 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 1103(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 Senior Civil Engineer Manager for the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), Jeffrey W. Wendel (Wendel) would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seg. (Ethics Act). Upon termination of service with PennDOT, Wendel became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety. The Ethics Act would not preclude Wendel from receiving compensation for his testimony in a lawsuit within the one year period of restricted activity since Wendel would be testifying on behalf of PennDOT before the Board of Claims, not his former governmental body. Since such activity would not constitute an attempt to influence his former governmental body, Wendel would not transgress Section 1 103(g) of the Ethics Act. 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. Buchv, 00 -508 January 26, 2000 Page 5 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. rely, ncent J. r!'• pko Chief Counsel