HomeMy WebLinkAbout00-529 DeenRichard K. Deen
RR 1 Box 512
Port Royal, PA 17082
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 28, 2000
00 -529
Re: Former Public Employee; Section 1103(g); Senior Civil Engineer Supervisor;
PennDOT.
Dear Mr. Deen:
This responds to your letter of January 26, 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 seq., presents any restrictions upon employment of a Senior Civil
Engineer Supervisor following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: You are a Senior Civil Engineer Supervisor with the Department of
the
Transportation ( "PennDOT ") in Engineering District 8 -0. District $ 0 en onm Perry S and
Counties of Adams, Cumberland, Dauphin, Franklin, Lancaster,
York. Your duties include overseeing employees who prepare highway construction
plans. Under the recent reorganization, you will be considered a Project Manager
responsible for meeting with municipalities to discuss proposed plans.
You have enclosed a copy of your job description, proposed job description, and
organization chart, which is incorporated herein by reference. You note that the
organization chart is a basic chart used during the reorganization. An actual chart with
all the employees' names and positions has not yet been completed. You also state
that you have not yet signed the proposed job description for the position of Project
Manager.
You are currently exploring opportunities to join a private consulting firm. You
ask for an advisory as to the restrictions that would apply to you after you leave
PennDOT.
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
t o f a nstwhg h have not been submitted. ubmitted investigation i nor does it
is the burden of the requestor speculate truthfully
to facts
FAX: (717) 787 -0806 • Web Site: www.ethics_state.pa.us • e -mail: ethics @state.0a.us
Deen, 00 -529
February 28, 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 Senior Civil Engineer Supervisor 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. 51102; 51 Pa.Code 511.1. 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 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. 51103(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
has employed the
r toubwhi official he publ c official or
Deen, 00 -529
February 28, 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 fo the
g
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 formeou blic mployee d bn name
e
of the former public employee may appear on r
regulations of the agency to which the billing is being submitted. AbramsNVebster,
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
other governmental body where the public official /employee had influence or control
but extends 290, 291; the body. No. 90 -006;� Session, No.
15 at 2 Sharp, Opinion 90- 009 -R, 9 ,
The governmental body with which you would be associated upon termination
of public service would be PennDOT in its entirety including, but not limited to
ervice
Engineering District 8 -0. Therefore, for the first year after termination of your sestrict
with PennDOT, Section 1103(g) of the Ethics Act would apply y
"representation" of "persons" before PennDOT.
Deen, 00 -529
February 28, 2000
Page 4
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that although the Ethics Act would not prohibit you from accepting
employment with a private consulting firm, it would restrict your conduct in your new
position to the actent ts which you have submitted do not indicate representation whether, i your new
PennDOT. The facts
position, you would perform work for PennDOT. It you would, be advised that to the
you that your ac form e su h activities w thout transgressing ng Section 11 of the
you could not pe
Ethics Act.
Based of Se Section the facts 103(g) only. Itbs expressly assumed p that there has been no
applicability of ti 9 Section
use ( a) o au thhety Ethics of s office . F you are advised that Sect ons 1 03(b)and
1103 1103(c)
(f te ic
and d n p ub li A f fi t cite /em loyee shall solicit or person anything of monetary value based
a nd no the off derstaoul P
o pen the und be that the influenced the reby Reference s these p o is o
official /employee would
the law not to imply that there has been or will be any transgression thereof ut
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 do not
code of c int er other thao the Ethics Act the Ethics Act. Specifically o not addressed herein is the
involve an interpretation
applicability of the Governor's Code of Conduct.
Conclusip : As a Senior Civil Engineer Supervisor for the C d be weal hre of
Pennsylvania, Department of Transportation ( "PennDOT "), you
a "public a t seg. (employee" Ethics Act") . to termination Official f service Ethics Act, 65 Pa.C.S. you would
§1101 e Ethics A
become o "former public em would be PennDOT in its entirety including, but not limited
to former governmental body
b e fol T District 8 he propriety of the a rstrictions as to
conduct representation
as only been addressed under the
be followd. Tty proposed
Act.
Further, should service be Financial Interests be filed by no later than May
require that a Statement of Fin 1 of the
year after termination of service.
Pursuant to Section 1107(11), an Advice is a complete defense eo i any
h
enforcement proceeding initiated by the Commission, elded the r vid es ha good f f a ith
conduct in any other civil or criminal proceeding, provided
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. reason
Finally, if you disagree with this Advice vice to t e full Com
to challenge same, you may appeal mission.
p
A personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Deen, 00 -529
February 28, 2000
Page 5
Any such appeal must be in writing and must be actua//v received
at the Commission within thirty (30) days eatmay be received at the
pursuant to 51 Pa. Code §13.2(h). The appeal
, or
Commission by hand delivery, United States mail, delivery servi at
by FAX transmission (717-787-0806). 30) Failure to file such an
result in the dism/ssa/ of
the Commission within thirty
the appeal.
cerely,
�
incent J. opko
Chief Counsel