Loading...
HomeMy WebLinkAbout00-525 BartonSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL February 24, 2000 Robert L. Barton, Jr. Assistant Civil Engineer Benatec Associates, Inc. 00 -525 200 Airport Road New Cumberland, PA 17070 Re: Former Public Employee; Section 1103(g); Civil Engineer; PennDOT; Private Engineering Firm. Dear Mr. Barton: This responds to your letter of January 21, 2000 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 se ., presents any restrictions upon employment of a Civil Engineer, Commonwealth of Pennsyl D of Transportation ("PennDOT"). the Commo Facts: In November 1999, you terminated your employment as an entry -level Civil Engineer, classified as a Civil Engineer II, with the Pennsylvania Department of Transportation ( "PennDOT ") in the Traffic Unit, Safety Section of Engineering District 8 -0. In this position, your duties included the following: 1. Performing traffic safety studies arising out of complaints and concerns from the public and legislators; 2. Designing small projects for PennDOT's maintenance forces to complete to correct any safety concerns; 3. Reviewing fatal accidents to determine if any actions could be taken to improve safety; 4. long stretches of roadway or orllocation District needing extensive managers) correct the safety of to work; and g 5. Reviewing guiderails for PennDOT personnel and construction projects and providing training for PennDOT personnel. You are currently Assistant Civil Engineer in the Civil Engineering Highway Section of Benatec Associates. In this position, to your project responsibilities pro, �d ivg t techn and engineering design support FAX: (717) 787 -0806 • Web Site: www.ethics.state.aa.us • e -mail: ethics @state.pa.us Barton, 00 -525 February 24, 2000 Page 2 engineers. You have submitted job descriptions for both your former and current positions, which are incorporated herein by reference. You seek an advisory as to the applicability of Section 1 103(g) of the Ethics Act as to your work on PennDOT projects in District 8 -0 and throughout the Commonwealth. 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 requester has truthfully disclosed all of the material facts. In the former capacity as Civil Engineer 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 §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 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 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 Barton, 00 -525 February 24, 2000 Page 3 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. 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 -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 Bar on, 00 -525 February 24, 2000 Page 4 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 /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 Engineering District 8 -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. As to the question you pose, you have indicated that in your new position with Benatec Associates, you will do design work on PennDOT projects. Assuming 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 ear that you would transgress ess Sect ons1103(g) of the it would not app Ethics Act. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(g aon�; at is uniar y benefit hat there has been no ohib t d by Section ton use of authority of office for p P ec 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(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 th hesponse been or the quest on presented. transgression thereof but merely to provide a complete 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 s Code of Conduct. . Specifically not addressed herein is the applicability of the G rn Conclusion: In the former capacity as a , iivnn Engineer you the d Commonwealth be considered earth of Pennsylvania, Department of Transportation a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1 et seq- public p employee" t ' subj subject to Section 1103 g) of Ethics Act. The former former public governmental body is PennDOT in its entirety, including but not limited to Engineering propriety 8 ty o f the The pr retrictions ed conduct representation outlined ddressed under the Ethics Act. proprie of prp Further, should service be n t of Financial terminated, Inte Interests be filed by no later than Act of would the require that a Statement year after termination of service. Barton, 00 -525 February 24, 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 the Commission Commission. ill be scheduled and a formal Opinion will be issued by 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, Vincent 3JDopko Chief Counsel