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Home My WebLink About97-004 BergmaierI. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein DATE DECIDED: 2/21/97 DATE MAILED: 3/7/97 97 -004 James J. Bergmaier 440 Windsor Drive Harleysville, PA 19438 Re: Former Public Employee; Section 3(g); Department of Transportation; Transportation Community Relations Coordinator 2; Appeal of Advice. Dear Mr. Bergmaier: This Opinion is issued pursuant to the appeal of Advice of Counsel, No. 96 -600 which was issued on October 22, 1996. Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Community Relations Coordinator following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. II. FACTUAL BASIS FOR DETERMINATION: By letter dated November 20, 1996, you have appealed Advice of Counsel, No. 96 -600 issued on October 22, 1996. The appeal of Advice did not delineate the nature of your objection to the Advice of Counsel other than to indicate the exercise of your right to appeal. By letter dated February 4, 1997, you were notified of the date, time, and location of the public meeting. In your initial request for an advisory, you submitted facts which may be fairly summarized as follows. For more than 12 years, you were employed by the Department of Transportation (PennDOT) as a Community Relations Coordinator (CRC) in Engineering Bergmaier, 97 -004 March 7, 1997 Page 2 Districts 5 and 6. You were terminated from that position as of March 1, 1996. You liked your job and had no intention of leaving. You suggest that you were fired for political reasons. You have been unable to find an equivalent full -time position in your field since your termination; however, you have received an offer to join a team of consultants who are pursuing a contract with PennDOT for improvements to a major highway in Philadelphia. Your role on this team would be that of a sub - consultant for public and media relations, working for the prime consultant and having no direct contact with PennDOT. You would operate under a fictitiously named sole proprietorship. Copies of your job description, job classification specifications and organizational chart were obtained and were incorporated by reference in the Advice. They are likewise incorporated herein by reference. It is noted that your job classification was "Transportation Community Relations Coordinator 2." Advice of Counsel, No. 96 -600 was issued on October 22, 1996. In Advice of Counsel 96 -600, you were advised that the fact that a termination is involuntary, either with or without cause, is of no legal significance in the application of Section 3(g) of the Ethics Law. The Advice outlined the restrictions that would apply to you as a former public employee for the first year following your termination. It was determined that your former governmental body would be PennDOT in its entirety, including but not limited to Engineering Districts 5 and 6. Our review of this matter is de novo. III. DISCUSSION: It is clear, and from the context of your submissions, it would appear that you do not dispute the fact, that in your former capacity as a Transportation Community Relations Coordinator 2 for PennDOT you were a "public employee" subject to the provisions of the Public Official and Employee Ethics Law. Our review of your job description, job classification specifications and organizational chart confirm that conclusion. It is equally clear that upon termination of your aforesaid position with PennDOT, you became a "former public employee" subject to the restrictions of Section 3(g) of the Ethics Law which provides as follows: 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. §403(g). The term "governmental body with which a public official or public employee is or has been associated" is defined in the Ethics Law as follows: Bergmaier, 97 -004 March 7, 1997 Page 3 65 P.S. §402. Section 2. Definitions "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. The Advice of Counsel properly concluded that your former governmental body includes all of PennDOT and is not merely limited to Districts 5 and 6 where you served. This conclusion is not only based upon the clear and obvious meaning of the statutory language but upon the legislative history which is cited and quoted in the Advice of Counsel. We would merely note that in our view, the statutory language is not ambiguous, but that even if it were, reference to the legislative history is an appropriate manner by which to resolve any ambiguity. See, Statutory Construction Act of 1972, 1 Pa.C.S. §1921(c)(7). Thus, your former governmental body includes all of PennDOT, not just Districts 5 and 6. As for our interpretations of the restrictions of Section 3(g), they have been so often recited that we see no need to reiterate them herein. We have reviewed the Advice of Counsel and are satisfied that it accurately apprises you of the nature of the Section 3(g) restrictions and of certain important Commission precedents pertaining to Section 3(g). We adopt and incorporate herein by reference the Advice's recitation of the Section 3(g) restrictions. As noted above, your appeal letter did not delineate the nature of your objection, but the focus of your concern in your initial letter was the involuntary nature of your termination. In that regard, the Advice of Counsel stated, "You are initially advised that the fact that a termination is involuntary, either with or without cause, is of no legal significance in the application of Section 3(g)." Bergmaier, Advice of Counsel No. 96 -600 at 2. We must conclude that the Advice of Counsel was correct in this regard as well. Section 3(g) contains no exceptions for those who are involuntarily terminated. Section 3(g) applies to all former public officials and public employees, without regard to the nature of the termination or the reasons for same. Even if your termination was for political reasons, as a matter of law, such would not afford a basis for excusing you from complying with these restrictions which all former public officials /public employees must observe. Advice of Counsel, No. 96 -600 is affirmed. However, it is noted that in your case, the one -year period for applicability of Section 3(g) expires as of March 1, 1997. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the Governor's Code of Conduct. Beramaier, 97 -004 March 7, 1997 Page 4 IV. CONCLUSION: A former Community Relations Coordinator 2 for the Commonwealth of Pennsylvania, Department of Transportation ( PennDOT) is a "former public employee" subject to the restrictions of Section 3(g) of the Public Official and Employee Ethics Law, Act 9 of 1989. The restrictions of Section 3(g) apply for one year following termination of the aforesaid public service. The former governmental body is PennDOT in its entirety, including but not limited to the individual districts served. The restrictions of Section 3(g) are accurately set forth in the Advice of Counsel, No. 96- 600, and must be observed, without regard to the nature of the termination or the reasons for same. The appeal is denied. Advice of Counsel, No. 96 -600 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. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty 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 the o6 Daneen E. Reese Chair