HomeMy WebLinkAbout00-534 LinebaughRobert W. Linebaugh
970 Forest Drive
Abbottstown, PA 17301
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
March 7, 2000
Re: Former Public Employee; Section 1103(g); Chief Utility Relocation Administrator;
Central Office; PennDOT.
Dear Mr. Linebaugh:
This responds to your letter of February 2, 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 gt se ., presents any restrictions upon employment of a chief utility
relocation administrator following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: On June 30, 1999, you retired from PennDOT, Central Office, Harrisburg,
after 34 years of service. Between 1993 and 1999, you served as Chief Utility
Relocation Administrator. Copies of your job description, organization chart and class
specification have been obtained for the position of Chief Utility Relocation
Administrator, which are incorporated herein by reference.
It is your understanding that you are permitted to perform work as an employee
of a consulting engineering firm that has a contract with a public or municipally -owned
utility even if the utility is receiving State highway and /or federal funds as a result of
the State's statutory obligation. You opine that the restrictions of Section 3(g) of the
Public Official and Employee Ethics Law do not relate to the funding source.
You are currently employed by Gannet Fleming, Inc. of Harrisburg, Pennsylvania
( "Gannet "). Gannet occasionally contracts with public and municipally -owned utilities
for highway and bridge related projects. Some of the projects are funded with State
or federal funds and others are partially or entirely funded by the utility.
You ask for an advisory as to the restrictions that apply to you as a former
PennDOT employee now working for Gannet.
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
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us
00 -534
Linebaugh, 00 -534
March 7, 2000
Page 2
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 Chief Utility Relocation Administrator 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
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
Linebaugh, 00 -534
March 7, 2000
Page 3
has been employed or to which the d public o le official an or
employee is or has been appointed
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 matters before the
of former the for v e nmental body l as rr to lo act acting onbehalffof participating in and (5) lobbying.
fo go
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 would be associated upon termination
of public service would be PennDOT in its entirety. Therefore, for E
first t would
termination of your service with PennDOT, Section 1103(g) of
apply and restrict "representation" of "persons" before PennDOT.
Linebaugh, 00 -534
March 7, 2000
Page 4
Having set forth all of the above restrictions, it is clear that although the Ethics
Act would not preclude you from accepting employment with Gannett, it would restrict
your conduct in your new position to the extent that such conduct would constitute
representation before PennDOT. Furthermore, you are advised that you would not be
prohibited from working for a private consulting engineering firm that would contract
with public and municipally- owned utilities on projects funded with State or federal
funds, provided that in performing your duties, no prohibited contacts would occur as
to PennDOT and no written materials containing your name would be submitted to
PennDOT, except within the narrrow and limited extent permitted by Webster, supra,
as set forth 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 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 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 Chief Utility Relocation Administrator 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 et sew. ( "Ethics Act "). Upon termination of service with
PennDOT, you would become a "former public employee" subject to Section 1103(g)
of the Ethics Act. The former governmental body is PennDOT 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.
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 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.
Linebaugh, 00 -534
March 7, 2000
Page 5
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,
Vincent J. op o
Chief Counsel