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HomeMy WebLinkAbout97-010 LongRussell J. Long, Sr. 25 Rustleaf Lane Levittown, PA 19055 -1444 Re: Former Public Employee; Section 3(g); Department of Transportation; Transportation Construction Manager 2; Appeal of Advice. Dear Mr. Long: This Opinion is issued in response to the appeal of Advice of Counsel No. 97- 541 which was issued on March 17, 1997. I. 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 Allan M. Kluger Rev. Joseph G. Quinn Julius Uehlein DATE DECIDED: 5/30/97 DATE MAILED: 6/11/97 II. FACTUAL BASIS FOR DETERMINATION: 97 -010 Whether the Public Official and Employee Ethics Law presents any restrictions upon the employment of a Transportation Construction Manager 2 following retirement from the Commonwealth of Pennsylvania, Department of Transportation. By letter dated April 2, 1997, you appealed Advice of Counsel No. 97 -541 issued March 17, 1997. In your initial advisory request letter dated February 13, 1997, you presented the following facts. You are employed by the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), Engineering District 6 -0 in St. Davids, as a Transportation Construction Manager 2. Your duties are those of a Project Manager (Project Engineer) in charge of construction projects of various degrees of complexity and value. After 31 years of service with PennDOT, you qualify for the early retirement option which expires on June 30, 1997. You are interested in taking the early Lonq, 97 -010 June 11, 1997 Page 2 retirement option to work in the private sector. You will seek employment in the capacity of either a Transportation Construction Inspector or as a Transportation Construction Inspector Supervisor on PennDOT projects which would be in a lesser capacity than as a PennDOT employee. Advice of Counsel No. 97 -541 outlined the restrictions that would apply to you as a former public employee for the first year following your retirement. It was determined that your former governmental body would be PennDOT in its entirety, including but not limited to Engineering District 6 -0. In your letter of April 2, 1997 by which you appealed Advice of Counsel No. 97- 541, you presented the following additional information. 1. Since your initial advisory request, you have sent out 19 resumes to either engineering firms or private developers. 2. You were offered a job on March 14, 1997 with VE Engineering as a Transportation Construction Inspector Supervisor to work on a project in Bucks County. VE Engineering was awarded an "Inspection Contract" by PennDOT to supply inspection manpower for this specific project. Prior to March 14, 1997 you had no contact with this or any other type of firm nor did you have any involvement with the award of the contract. You believe that there is no financial conflict or violation since you had no association or influence with VE Engineering or PennDOT as to the engineering firm being awarded the Inspection Contract. 3. PennDOT has gone to the private sector for many years to provide manpower to perform inspection duties due to the lack of sufficient manpower to provide the quality inspection that is required on a construction project. 4. You would not be acting on behalf of VE Engineering, but would be acting on behalf of PennDOT, representing only PennDOT by daily inspections of various construction operations under the direct supervision of a PennDOT Resident Engineer. There will be no personal appearances, negotiations, or involvement . with any bids or contract proposals either signed by you or containing your name. 5. PennDOT has shown a preference in private engineering firms which hire and utilize past PennDOT employees for its projects to fill huge voids left by those employees who leave or retire. There have been occasions when particular employees retired and started employment on the very next work day with a consultant on the very same project and at the very same desk. You state that you see no conflict of interest, particularly when these people are of the caliber and are an asset to PennDOT. You indicate that your 31 years of experience would be extremely beneficial to PennDOT. It is your belief that the position you would hold would not be a conflict of interest and would not be a violation of the public trust. You further state that you would still be upholding the public's interest as you have in the past, by assuring that the best quality work is done in the safest manner. You state that your performance with PennDOT has been impeccable and will continue to be no matter by whom you are employed. Long, 97 -010 June 11, 1997 Page 3 You are certain that you would be able to function without any ethical conflicts. This is the only livelihood that you know and you need to work to provide the necessary income to live. You request that Advice of Counsel No. 97 -541 be revised and the one year restriction be waived. In a Brief dated May 16, 1997, you added the following information. Your proposed activity is not an effort to realize personal financial gain through public office and you should be permitted to seek employment without restriction. In your opinion, your position of Transportation Construction Manager 2 was not an influential position and your ability to obtain a job after retirement will be based upon your extensive experience and knowledge. Since construction is the only livelihood you know, you need this type of work in order to earn an income without which a hardship would occur for you and your family. During your employment, you were never told about the one year prohibition and you never agreed to such a restriction. You started employment with PennDOT with the intention of working the minimum time to qualify for retirement so that you could- get another job. Of the nineteen resumes you sent to engineering firms, private developers or contractors, all except two have stated that they would not hire you because of the one year prohibition. VE Engineering has offered you a job as a Transportation Construction Inspector Supervisor on a PennDOT project in Bucks County because the firm believes the job would not be prohibited. VE Engineering was awarded the contract by PennDOT to supply inspection manpower for the project. Prior to March 14, 1997, you had no contact with VE Engineering or any other firm and had nothing to do with the award of the contract. As to VE Engineering or PennDOT, you see no conflict since you had no association or influence which could have benefitted the firm in obtaining the contract. You assert that you would not be acting on behalf of VE Engineering but on behalf of PennDOT in inspecting various construction operations under the supervision of a PennDOT resident engineer. You argue that you would also be acting on behalf of the Bucks County Commissioners. You state there will be no personal appearances, negotiations or involvement with any bids or contract proposals either containing your name or signature. You also were offered a job by Pennoni Associates to do inspection work on a County bridge restoration project but Pennoni was told by District 6 of PennDOT that you could not work on that project. PennDOT utilizes the private sector to obtain manpower for inspection duties since PennDOT does not have sufficient manpower to provide quality inspections on constructions projects. PennDOT historically has preferred engineering firms that utilize PennDOT employees for its projects. On some PennDOT projects, an approval is required by PennDOT as to the persons doing the inspections for the governmental body. You see no conflict given the caliber of the people. As for yourself, your 31 years of experience is extremely beneficial to PennDOT. You do not believe that the positions offered by VE Engineering or Pennoni Associates would create a conflict since you would be looking out for the public's interest by assuring that the best quality work was done in the safest manner. Neither of the two jobs are what you want but are acceptable. You would prefer to work for Long, 97 -010 June 11, 1997 Page 4 a general contractor with a promising long term outlook rather than as an inspector who could be furloughed every winter. Since you have dedicated your life to PennDOT with impeccable performance, you are certain that you will be able to function in any firm with no ethics problems. At the public meeting on May 30, 1997, you appeared and in addition to reiterating arguments set forth above, offered the following commentary. You have now officially retired from PennDOT, as of April 4. You state that you have no further obligation to PennDOT or the Commonwealth of Pennsylvania and that your only obligation is to yourself and to your family. As to your prospective employment with VE Engineering, you state that your day -to -day work would involve being at the project site inspecting individual operations to make sure the work is done according to plans and standards. You would be submitting daily inspection reports to PennDOT directly, not through VE Engineering. VE Engineering would be billing PennDOT for your services, as well as for the services of others. You state that you do not see how your PennDOT position could be considered influential, and that you feel that the Section 3(g) restrictions should not apply to you. You contend that the application of the Section 3(g) restrictions to you would violate your constitutional rights by depriving you of the liberty to choose who you will work for, and by hindering your opportunity for betterment. You state that you interpret the purpose of Section 3(g) of the Ethics Law to be to prevent someone from using his position, before retiring, to better himself. You point out that you have already retired. Finally, you note that some employers will not hire you because of the one year restriction, regardless of the fact that the work you would be doing for such employers would not involve interaction with PennDOT. Our review of this case is de novo. III. DISCUSSION: In your former capacity as a Transportation Construction Manager 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 confirms 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. Long, 97 -010 June 11, 1997 Page 5 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: 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. 65 P.S. §402. The term "represent" is defined under the Ethics Law as follows: 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. Based upon our review, the Advice of Counsel properly concluded that your former governmental body is all of PennDOT and not merely Engineering District 6 -0 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 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 Engineering District 6 -0. 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 apprised 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. Turning to the various arguments you proffer, the submitted fact that during your employment, you were never told about Section 3(g) and never agreed to its restrictions is of no legal consequence. The law applies to you, with or without your consent, and you are presumed to know of it. Long, 97 -010 June 11, 1997 Page 6 Furthermore, we disagree with your statement that you would not be acting on behalf of your new employer, VE Engineering, but on behalf of PennDOT in doing daily inspections of various operations. Since you would be retired from PennDOT, VE Engineering rather than PennDOT would be your employer on whose behalf you would be performing services. Because you would be acting on behalf of VE Engineering on the PennDOT projects, you would be representing that person (VE Engineering) which is prohibited by Section 3(g) of the Ethics Law. As we noted in Shay, Opinion No. 91 -012: 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. J at 3. You assert that you had no prior contact with VE Engineering and no involvement with the award of the contract. Although we do not question your statement, it does not create an exception as to the application of Section 3(g). Moreover, this Commission does not have the authority to create an exception that does not exist by statute. Richardson, Opinion No. 93 -006. You state that PennDOT has a preference for engineering firms which utilize former PennDOT employees. Although the Ethics Law does not restrict PennDOT as to the award of contracts to engineering firms, the Ethics Law does prohibit a former public employee who is hired by such a firm from representing that firm before the former governmental body, PennDOT. You further state that the application of the Section 3(g) restrictions would violate your constitutional rights to choose who you will work for and to better yourself. This argument evidences your misunderstanding of the effect of the Section 3(g) restrictions. Section 3(g) does not operate to preclude you from accepting employment with anyone. Rather, Section 3(g) applies to restrict you as a former public employee from representing persons, including your new employer, before PennDOT. Moreover, the constitutionality of the Ethics Law has been upheld by the Pennsylvania Supreme Court. Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981). As for your submission that various firms will not hire you even where the work would not involve interaction with PennDOT, simply because of the Section 3(g) restrictions, we would emphasize that with regard to positions which would not require that you interact with PennDOT and which would not involve any other prohibited form of representation before PennDOT, such as the submission of your name on documents going to PennDOT, Section 3(g) would not restrict you in your performance of your job duties. You state that this is the only area of work with which you are familiar and that such work is necessary for you to have an income with which to live. Although we are not unsympathetic to your concern, we note that you made the decision to retire, Long, 97 -010 June 11, 1997 Page 7 and further, that Section 3(g) would not preclude you from resuming employment with PennDOT as a PennDOT employee. As we noted in Confidential Opinion, No. 93 -005: Lastly, and most importantly, we note that the application of Section 3(g) is not unduly harsh in that the Ethics Law does not prohibit the rehiring of the former public employee to perform those services provided that a true public employment relationship exists. Finally, you suggest that the one -year restriction of Section 3(g) of the Ethics Law should be waived. Section 3(g) and the other provisions of the Ethics Law are legislatively mandated; we have no discretion to waive the restriction. Richardson, Opinion 93 -006. Advice of Counsel, No. 97 -541 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Specifically not addressed herein is the Governor's Code of Conduct. IV. CONCLUSION: A former Transportation Construction Manager 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 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, which must be observed. Advice of Counsel No. 97 -541 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. Vice Chair Austin M. Lee dissents. By the Commission, OCISAU taw. Daneen E. Reese Chair