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HomeMy WebLinkAbout00-516 AmicaPhilip J. Amica, P.E. Senior Civil Engineer Water Management Program 139 Wagner Boulevard Carbondale, PA 18407 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 15, 2000 00 -516 Re: Former Public Employee; Section 1103(g); Senior Civil Engineer - Hydraulic; Pennsylvania Department of Environmental Protection; Pennsylvania Department of Transportation; Pennsylvania Fish and Boat Commission; Pennsylvania Game Commission. Dear Mr. Amica: This responds to your letter of January 13, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of a Senior Civil Engineer - Hydraulic following termination of service with the Pennsylvania Department of Environmental Protection. Facts: You are currently employed by the Pennsylvania Department of Environmental Protection (DEP) as a Senior Civil Engineer - Hydraulic. Before you pursue employment with the Pennsylvania Department of Transportation ( PennDOT), Pennsylvania Fish and Boat Commission (FBC) or Pennsylvania Game Commission (GC), you request an advisory as to whether or not you would be subject to Section 1 103(g) of the Ethics Act. PennDOT, FBC and GC often deal with DEP. In your new position, you may be asked to become involved in projects overlapping your current job duties that would require direct correspondence, communication and involvement with the very same program for which you presently work. You have enclosed a copy of your job description, organizational chart and Title 25 of the Pennsylvania Code, which is incorporated herein by reference. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us Amico, 00 -516 February 15, 2000 Page 2 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. As a Senior Civil Engineer - Hydraulic for the Pennsylvania Department of Environmental Protection (DEP), 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 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 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 Amico, 00 -516 February 15, 2000 Page 3 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 /public 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 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 /public 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 would be associated upon termination of public service would be the Pennsylvania Department of Environmental Protection in its entirety. Therefore, for the first year after termination of your service with the Pennsylvania Department of Environmental Protection, Section 1 103(g) of the Ethics Amico, 00 -516 February 15, 2000 Page 4 Act would apply and restrict "representation" of "persons" before the Pennsylvania Department of Environmental Protection. If your responsibilities in your new position with PennDOT, FBC or GC would would be such that you would engage in prohibited representation before DEP as outlined above, you would transgress Section 1103(g) of the Ethics Act. Although it might be argued that Section 1103(g) should not apply because your new employment would be with government as opposed to the private sector, the Commission in Ledebur, Opinion 95 -007 rejected this argument in considering whether the Director of Family Resource Networks for the Philadelphia School District would be subject to the restrictions under Section 3(g) of the Ethics Law following his termination of service as a Bureau Director for the Pennsylvania Department of Education. The Commission first determined that the governmental bodies involved, the Pennsylvania Department of Education and the City of Philadelphia School District, were separate and distinct. It then stated, "regardless of whether the new employer is a private company or a governmental body, employment might be based upon considerations of contacts with the former governmental body for the benefit of the new employer." Having noted that the concerns relative to Section 3(g) still existed, the Commission concluded that upon termination of service with the Pennsylvania Department of Education, Ledebur would become a former public employee subject to Section 3(g) of the Ethics Law. 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 1 103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. Conclusion: As a Senior Civil Engineer - Hydraulic with the Pennsylvania Department of Environmental Protection, you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with the Pennsylvania Department of Environmental Protection, you would become a "former public employee" subject to Section 1 103(g) of the Ethics Act. The former governmental body is the Pennsylvania Department of Environmental Protection 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. 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. Amico, 00 -516 February 15, 2000 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, cs Vincent J. opko Chief Counsel