Loading...
HomeMy WebLinkAbout91-012 ShayMr. Wendell L. Shay 2315 Wells Drive Bethel Park, PA 15102 I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING' HARRISBURG, PENNSYLVANIA 17120 OPINION OF TICE COMMISSION Before: Dennis C. Harrington, Chair Daneen E. Reese Roy W. Wilt James P. Gallagher DATE DECIDED: December 5, 191 DATE MAILED: December 10,1991 91 -012 RE: Former Public Employee; Section 3(g); PennDOT; Locations - Contract Management Engineer, Highway Design Manager, Appeal of Advice, Name on Invoice to Former Governmental Body. Dear Mr. Shay: This Opinion is issued pursuant to your appeal of the Advice of Counsel, No. 91 -582, issued on September 20, 1991. Whether the restrictions of Section 3(g) of the Public Official and Employee Ethics Law would preclude the inclusion, of the name of a former public official /employee on invoices submitted by his private employer to the former governmental body, for one year after he leaves that body. II. Factual Basis for Determination: The issue which you presented was originally processed as a request for an Advice of Counsel and as a result on September 20, 1991, Advice of Counsel, No. 91 -582 was issued. That Advice concluded that as a Locations - Contract Management Engineer for PennDOT, you would be considered a "public employee" as defined in the Ethics Law, such that upon termination of service with PennDOT, you would become a "former public employee" subject to the restrictions of Section 3(g) of the Ethics Law. Your former governmental body was determined to be PennDOT, including but not limited to District 11 -0. The Advice of Counsel further concluded that the restrictions of Section 3(g) would preclude your name appearing on invoices or other documents submitted by or on behalf of your new employer to PennDOT during the one -year period following termination of your employment with PennDOT, despite your representations that PennDOT regulations would require that your name and not just your position appear on such invoices. On October 7, 1991, this Commission received your letter of October 3, 1991, wherein you appealed the above Advice. You did not appeal your status as a former "public official /employee" subject to the Ethics Law, nor did you challenge the determination that PennDOT is your former governmental body. You did not appeal any of the restrictions of Section 3(g) of the Ethics Law as the Advice of Counsel concluded they would apply to you, except regarding the prospective inclusion of your name on invoices /materials submitted by your employer to PennDOT. Specifically, you solely appeal the seventh paragraph (next to last) on page six of the Advice of Counsel which provides as follows: In this regard, your letter of inquiry parenthetically mentions that your name would appear on invoices submitted to PennDOT, rather than just your position, and you reference PennDOT regulations as requiring such. This would be prohibited by the Ethics Law. See Stinson, Advice 91- 529 -S. The definition of the term "represent" would preclude submitting your name to PennDOT on invoices. Therefore, given the specific prohibitions of Section 3(g) of the Ethics Law, as well as the Commission's interpretations of that Section, your name must not appear on invoices - or any other materials, for that matter - submitted by or on behalf of HDR to PennDOT. Shav, Advice 91 -582 at 6. In a submitted brief, you assert that in the Design Phase of the project, every person "assigned to and time invoiced" must be approved by PennDot which requires that a person be identified by name. Any invoice submitted without a name would be rejected by PennDot although such a requirement may not be applied as to the construction phase. You argue that a person's name on an invoice does not constitute representation since such invoicing occurs after the contract has been executed. You assert that your name on an invoice submitted to PennDot is merely a line item of charge like other costs and does indicate that you prepared and signed the invoice. Finally, you suggest that since the definition of represent only enumerates lobbying and submitting bid or contract proposals, the submission of your name on an invoice does not constitute representation. It is conceded by you that an invoice may be subject to question. PennDot might contest an HDR, Inc. invoice which could conceivably place you in the position of justifying the work you performed as submitted on an invoice. You also acknowledge that although the contract was negotiated by HDR, Inc. with the Harrisburg office of PennDot, the project involves western Pennsylvania and you, while employed by PennDot, worked out of the District 11 office in Pittsburgh. Our review of this case shall be limited to the narrow issue which you have raised in appealing the above language of Advice of Counsel No. 91 -582. III. Discussion: Section 3(g) of the Ethics Law provides: Section 3. Restricted activities (g) 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 P.S. S403(g). This Commission has long recognized that the Legislative intent in 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. Keeping the above purpose in mind, we must first consider whether the inclusion of your name on invoices submitted by your employer to PennDOT as your former governmental body, would be to "represent" a "person" with promised or actual compensation on any matter before your former governmental body. The following terms are defined as follows in the Ethics Law: Section 2. 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. 65 P.S. 5402. Your new employer, HDR Engineering, Inc. ( "HDR "), would clearly be within the definition of "person" set forth above, as a business /firm and corporation. We are of the opinion that the proposed inclusion of your name on invoices submitted by HDR to PennDOT would fit within the definition of "represent" above, and thus would be prohibited by the Ethics Law. For purposes of the Ethics Law, there is no meaningful distinction between the submission of the name of a former public official /employee on a bid or contract proposal, which is specifically included in the definition of "represent" to exemplify its meaning, and the submission of the name of such a former public official /employee on an invoice submitted to the former governmental body. In either instance, the involvement of the former public official /employee on behalf of a person - in this case, the new employer - is being made known to the former governmental body. Although you argue that the submission of an invoice is not specifically included in the definition of "represent ", we must note that "represent" encompasses "any activity." Likewise, just because invoices are not included in items specifically enumerated in the statutory definition, it does not follow that invoices are thereby excluded. To the contrary, an invoice is an item which is included within the definition as to activities "which [would] include[s], but -- -not [be] limited to Furthermore, there is no doubt that the inclusion of your name on invoices submitted by your employer to PennDOT would be with your knowledge and consent and would constitute action on behalf of your new employer. Cf., Stephens v. Com., State Ethics Commission, 132 Pa. Commw. 71, 571 A.2d 1120 (1990). In addition, in performing work for HDR, Inc. as to the PennDot project, you would have to complete and submit time records which form the basis for a line item on an invoice. It is also clear that you have an awareness of this fact since you are knowledgeable as to the process. If an invoice is challenged, it is possible that you would have to become a participant in the resolution of the dispute by explaining or testifying on behalf of HDR, Inc. as to the manner in which you completed the services on a contested invoice. Such activity would also constitute representation. Therefore, the specific prohibitions of Section 3(g) of the Ethics Law, as well as this Commission's interpretations of Section 3(g) would preclude the inclusion of your name on invoices submitted on behalf of your new employer to PennDOT. Although you stated in your initial letter of inquiry that PennDOT regulations would require that your name appear on such invoices, and not just your position, you have not provided any support for that assertion. Even if we assume it to be true, however, it is the duty of this Commission to enforce the Ethics Law and we do not have the latitude to ignore the requirements of Section 3(g) of the Ethics Law as it has been duly promulgated by the General Assembly of the Commonwealth of Pennsylvania, to favor the regulations of PennDOT or any other agency. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Advice of Counsel, No. 91 -582 is affirmed. IV. Conclusion: As a former public employee subject to the restrictions of Section 3(g) of the Ethics Law, those restrictions would prohibit the inclusion of your name on invoices submitted by your employer, HDR Engineering, Inc., to PennDOT, your former governmental body. The restrictions of Section 3(g) of the Ethics Law are applicable for a period of one year after termination of service with PennDOT. Advice of Counsel, No. 91 -582, is affirmed. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By t p Commission, 4+ Dennis C. Harrington Chair