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HomeMy WebLinkAbout00-547 PickeringWilliam D. Pickering 2855 Croyden Road Harrisburg, PA 17104 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 21, 2000 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 00 -547 Re: Former Public Employee; Section 1103(g); Chief; Right -of -Way and Utilities Division; Bureau of Design; PennDOT. Dear Mr. Pickering: This responds to your letter of February 15, 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 sea., presents any restrictions upon employment of a Chief of the Right -Of -Way and Utilities Division in the Bureau of Design following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You were formerly Chief of the Right -Of -Way and Utilities Division in the Bureau of Design for the Department of Transportation ( "PennDOT "). You retired from PennDOT on October 29, 1999. You have submitted a copy of your job description, which is incorporated herein by reference. In November 1999, you began to work for So -Deep, Inc. ( "So- Deep ") as a professional engineer. So -Deep provides professional services in locating underground utilities to clients in the highway engineering field. So -Deep has subcontracts with consulting engineers who have contracts with PennDOT for highway design services. So -Deep also has contracts with PennDOT to provide professional services. You state your understanding that the Ethics Act prohibits you from "certain types of contacts" with PennDOT during the first year of your retirement. You pose the following specific questions as to the subcontracts So -Deep has with consulting engineers: 1. What restrictions would apply to your work on such subcontracts? 2. What restrictions would apply with regard to charging your time? 3. Whether you would be restricted from taking professional responsibility for the work product produced by So -Deep? Pickering, 00 -547 March 21, 2000 Page 2 4. Whether there are any restrictions as to marketing the services of So- Deep to engineering consultants who may be working for PennDOT? You pose the following specific questions as to the contracts So -Deep has with PennDOT: 1. Whether you would you be restricted from working as an overhead employee of So -Deep on such contracts? 2. Whether you would be permitted to charge your professional time as to such contracts? 3. Whether you would be restricted as to taking professional responsibility for this work? 4. Whether you would be restricted as to the type and /or number of personal contacts you would have with PennDOT staff, and whether it would make a difference if the contacts were written, electronic or telephonic? 5. Whether you would be permitted to market the services of So -Deep to PennDOT staff? 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 Chief of the Right -Of -Way and Utilities Division in the Bureau of Design 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 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. Pickering, 00 -547 March 21, 2000 Page 3 (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 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 Pic 00 -547 March 21, 2000 Page 4 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 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 the first year after termination of your service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons " -- including but not limited to your new employer, So- Deep -- before PennDOT. Your specific inquiries as to the sub - contracts So -Deep has with consulting engineers shall now be addressed. As for your first inquiry, you are advised that the restrictions of Section 1103(g) of the Ethics Act as set forth above would have to be observed as to any work that you would do for So -Deep. As for your second inquiry, Section 1103(g) of the Ethics Act would not preclude you from charging your time for subcontracts So -Deep has with consulting engineers so long as your name would not appear on any invoices submitted to PennDOT for review, except within the narrow and limited extent permitted by Webster, supra, as set forth above. As for your third inquiry, you do not explain what it means to take "professional responsibility" for the work product produced by So -Deep. If taking "professional responsibility" would involve prohibited representation as outlined above, Section 1103(g) of the Ethics Act would preclude you from so doing. As for your fourth inquiry, Section 1103(g) of the Ethics Act would not restrict you from marketing the services of So -Deep to engineering consultants who may be working for PennDOT because such individuals are not your former governmental body. Pickering, 00 -547 March 21, 2000 Page 5 Your specific inquiries as to the contracts So -Deep has with PennDOT shall now be addressed. As for your first inquiry, you are advised that the restrictions of Section 1 103(g) of the Ethics Act as set forth above would have to be observed as to any work that you would do for So -Deep. As for your second inquiry, you would not be prohibited from charging your professional time for contracts So -Deep has with PennDOT so long as your name would not appear on any invoices by Webster, supra, as set forth above. As the narrow and limited extent permitted As for your third inquiry, you do not explain what it means to take "professional responsibility" for the work product produced by So -Deep. If taking "professional Section 113(9 ) of responsibility" e Ethics Act would preclude you from o doing. outlined above, As for your fourth inquiry, you are advised that pursuant to Section 1103(g) of the Ethics Act, you would not be permitted to have any contacts with PennDOT staff which difference whether the contacts ts.were written, electronic o above. would make no diff telephonic. As for your fifth inquiry, Section 1103(g) of the Ethics Act would prohibit you from marketing the services of So -Deep to PennDOT staff. 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 provide a complete there esponse been or the quest on presented ression thereof but merely p 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. lities Conclusion: In the former capacity as Chief of the Right -Of -Way and art�ment Division in the Bureau of Design for the Commonwealth of Pennsylvania, p of Transportation ( "PennDOT "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 m. ( "Ethics Act "). Upon termination of service with PennDOT, you became 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 Pickering, 00 -547 March 21, 2000 Page 6 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. 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. i cerel y, ` Vincent J. Dopko Chief Counsel