Loading...
HomeMy WebLinkAbout00-589 KlingermanKenneth D. Klingerman 322 South Alley, Apartment 5 Montoursville, PA 17754 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 7, 2000 Re: Former Public Employee; Section 1103(g); Senior Civil Engineer Supervisor; Roadway Design Division; PennDOT. Dear Mr. Klingerman: This responds to your letter of June 6, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act - ( "Ethics Act"), 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. Facts: As of June 9, 2000, you are retiring from the Commonwealth of nsylvania, Department of Transportation ("PennDOT") in Montoursville, Pennsylvania with ten years of service. Upon retirement from Commonwealth service, you will take a position with a full service design /engineering consultant in Williamsport, Pennsylvania. While employed by PennDOT, you held various positions such as Civil Engineer and Senior Civil Engineer Supervisor. Your last position with PennDOT was as a Roadway Design Squad Leader classified as a Senior Civil Engineer Supervisor. You have submitted a copy of your latest job description with PennDOT, which job description is incorporated herein by reference. You request an advisory from the State Ethics Commission regarding the restrictions imposed upon you by the Ethics Act. You pose numerous inquiries. In your first series of inquires you request the following information: the legal reference that controls your activities; a general statement of the intent of the law; and the length of time that the restriction is in effect and any exemptions to that time period. In your second set of inquiries, you pose the following questions concerning clients and services you may provide in your new position as an Engineer Supervisor with a firm which has contacts with PennDOT Engineering Districts 3 -0 ( Montoursville), 5 -0 (Allentown), and 9 -0 (Hollidaysburg): whether you may have direct contact on projects with PennDOT personnel in the PennDOT Central Office, District 3 -0, or any other PennDOT Districts; with regard to projects for the Central Office, District 3 -0, or other PennDOT Districts, whether you may participate in the design of projects and bill FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -589 Klincierman, 00 -589 July 7, 2000 Page 2 for your services, provided your name is not directly related to submissions (except on invoices) or part of the approval process; whether you would be restricted as to dealings with the Pennsylvania Turnpike Commission ( "PTC "); whether you would be restricted in dealings with local municipalities that use only local and federal funds, or that use state funds for transportation projects; and whether there would be limitations with regard to offering your services to other state, federal, or local agencies in District 3 -0 or in other Districts. 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. As a 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. §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 minims 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 ": § 1103. Restricted activities 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: § 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. Klingerman, 00 -589 July 7, 2000 Page 4 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 will have been associated upon termination of public service is 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" before PennDOT. Turning to your specific inquiries, you first ask for the legal reference that controls your activities. The restrictions of the Ethics Act which would apply I to you are cited and quoted above. You can find the Ethics Act and related information at the State Ethics Commission website: www.ethics.state.pa.us As for the intent of the law, the Commission stated in Shay, Opinion No. 91 -012: This Commission has Tong recognized that the Legislative intent in l promulgating Section 3(g) of the Ethics Law was to protect the public trust, such that a public official /employee must act consistently with the public trust and upon leaving public service, may not utilize his association with the public sector, officials or employees to secure treatment or benefits for himself or his new employer that may only be obtainable because of his association with his former governmental body. Id. at 3. Additionally, it is noted that Act 9 of 1989 significantly broadened the definition oT the term "governmental body with which a public official or public employee is or has been -associated. It was the - specific intent of the General Assembly to define the term so that it was not merely limited to the area where a public official/employee had influence or control but extended to the entire governmental body with wch the deb tc official /employee was associated. te n aterflected in the legislative relative to the amendatory language for the We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit... Legislative Journal of House, 1989 Session, No. 15 at 290, 291. In response to your third inquiry,. as noted above, Section 1103(g) of the Ethics Act applies for a one -year period following termination of the public service in question. There is no basis in the statute for granting any waiver as to the one -year restriction. The State Ethics Commission does not have the authority to grant that which is not authorized by law. See, Richardson, Opinion No. 93 -006; Ziegler, Opinion No. 98 -001. As the Commission stated in Ziegler, supra: [T]his Commission is duty -bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section 3(g) restrictions to apply to all former public officials /public employees. There is no mention in the statute of any "variances" or "exceptions. „ Obviously, the facts in any given case may be more or less compelling than in others, but the law must be applied fairly and uniformly. Id. at 6. Similarly, in your case, the State Ethics Commission would not have the power to grant a "waiver” of the Section 1103(g) restrictions because such are not authorized by the Ethics Act. Klingerman, 00 -589 July 7, 2000 Page 3 "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 - hifnself, 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 ublic 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 ublic 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 Klinqerman, 00 -589 July 7, 2000 Page 5 Your next questions are posed alternatively as to the PennDOT Central Office, PennDOT District 3 -0, or other PennDOT Districts. You are advised that as noted above, the restrictions of Section 1103(g) apply to restrict you as to PennDOT in its entirety. Direct contact with PennDOT personnel regarding, your employer's projects, which constitutes representation, would be prohibited during the one -year period of applicability of Section 1103(g). With regard to designing_ projects, to the extent you would be able to do that sort of work without engaging in prohibited representation before PennDOT, such would be permissible under Section 1103(g) However, as noted above, your name could not appear on submissions to PennDOT. That restriction applies to preclude the submission of your name even on invoices except as to a pre- existing contract that would not involve a unit where you previously worked. See, Abrams - Webster, supra. With regard to the PTC, you are advised that such is considered a separate governmental body from PennDOT. Based upon the facts which you have submitted, the restrictions of Section 1103((gq)) would only apply to restrict you as to PennDOT; they would not restrict you as to the FTC. Turning to your inquiries as to dealing with municipalities that use local, state, or federal funding, and the potential for offering your services to other state, federal, or local agencies located within PennDOT District 3 -0 and other Districts, you are advised that you would not be prohibited from working with municipalities that would utilize state funds, provided that in performing such services, no prohibited contacts would occur as to PennDOT and no written materials containing your name would be submitted to as set PennDOT, except to the narrow he same as extent permitted servces by other state, feeal or forth above. The answer would be local agencies. 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: As a Senior Civil Engineer Supervisor 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 seq. ( "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 would be 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. KlinQerman, 00 -589 July 7, 2000 Page 6 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 actuall 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. incerely, Vincent J. dopko Chief Counsel D arko