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HomeMy WebLinkAbout97-010-R LongOPINION OF THE COMMISSION Russell J. Long, Sr. 25 Rustleaf Lane Levittown, PA 19055 -1444 I. SUE: 0 10. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein DATE DECIDED: 8/15/97 DATE MAILED: 8/26/97 97 -010 -R Re: Former Public Employee; Section 3(g); Department of Transportation; Transportation Construction Manager 2; Appeal of Advice; Reconsideration. Dear Mr. Long: This Opinion is issued in response to your request for reconsideration of Lonq, Opinion No. 97 -010. Whether this Commission should grant reconsideration of Lonq, Opinion No. 97- II. FACTUAL BASIS FOR DETERMINATION: This matter initially arose from your advisory request letter dated February 13, 1997 which resulted in the issuance of Lonq, Advice of Counsel No. 97 -541 issued March 17, 1997. You timely appealed that Advice of Counsel, and after your appeal was considered in a public meeting at which you appeared and offered commentary, Lonq, Opinion No. 97 -010, was issued. In that Opinion, we affirmed Advice of Counsel No. 97 -541. We determined that as a former Transportation Construction Manager 2 for the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), you would be considered a "former public employee" subject to the restrictions of Section 3(g) of the Public Official and Employee Ethics Law (the "Ethics Law "). The former governmental body was determined to be PennDOT in its entirety, including but not limited to the individual districts served. We held that the restrictions of Section 3(g) had been accurately set forth in Advice of Counsel No. 97 -541, and that you would be required to observe those restrictions. Lona, 97 -010 -R August 26, 1997 Page 2 You have timely submitted a request for reconsideration of Long, Opinion No. 97- 010. In seeking reconsideration, you have raised numerous arguments which may be fairly summarized as follows. You contend that this Commission should have ruled that you were exempt from Section 3(g) or that Section 3(g) was not applicable to you. First, you contend that your situation does not fit within the purpose for which the Ethics Law was created. You cite Section 1(a) of the Ethics Law, 65 P.S. §401(a), which sets forth the "purpose" of the Ethics Law and which specifically declares that .. public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust." You contend that the law was not intended to apply to employees who have earned full retirement. Because you have already retired, it is your view that you would not be able to realize any personal financial gain through the job that you no longer hold. Rather, you contend that any position you may secure would be based upon your own experience and expertise rather than upon any association with your former governmental body, PennDOT. You contend that the intent of Section 3(g) is to prevent a "revolving door" situation where a public employee uses his public position to set up a better job in the private sector and then leaves before qualifying for full retirement. You state that you do not see how you would fit within the "revolving door" scenario, having devoted your lifetime to your PennDOT position and qualifying for full retirement. You state that Opinion No. 97 -010 has placed an extreme financial hardship upon you and your family. Noting that you have been advised by this Commission that the Ethics Law does not preclude you from working in the private sector, you state it is impossible for you to continue to work in your field without "representing" a new employer to some degree. Finally, you state your view that the Opinion is punitive, and further, is critical of you for deciding to retire from PennDOT insofar as it states that the law would not preclude you from resuming employment with PennDOT. You note that regardless of when you would retire, based upon this Commission's application of the law, Section 3(g) would apply to you at such time. At the public meeting on August 15, 1997, you appeared and provided the following commentary and arguments. Initially, you state that you feel that the Commission had already made its decision when you appeared at the public meeting in May and hope that the Commission has not predetermined your reconsideration request. You assert that the Commission applies the restrictions of Section 3(g) of the Ethics Law "carte blanche" rather than evaluates individual circumstances to implement the law fairly. You contend that the Commission should determine whether the public employee had an influential position and used his influence to secure a job in the private sector. You assert that if the position is non - influential and there is no ethical violation in obtaining private sector employment, the ruling should be for an exemption or non - applicability of Section 3(g). You question why the Commission considers an employee who retires, after working a lifetime for a state agency, to be a "revolving door employee." You indicate Long, 97 -010 -R August 26, 1997 Page 3 that you conducted a survey of some prominent people and asked them to compare a state employee who leaves before full retirement and uses his position to obtain a job in the private sector, versus an employee who takes a non - influential state job, devotes a lifetime to that job and retires without using his influence to obtain a job in the private sector. You state that all agreed it would be the former employee who is the "revolving door employee." You challenge that your former position as a Construction Manager II was influential, noting that any job that you would get would be based upon your expertise and knowledge. In seeking an exemption or non - applicability, you state that you made no effort to realize personal financial gain through public office and did not violate the public trust. You state that you just want and need to work. You question why the restrictions of Section 3(g) are applied evenly to both those in non - influential positions as well as those who can abuse the public trust, noting that PennDOT District Engineers can leave public employment and obtain highly paid positions in the private sector, but someone in your type of position is only able to secure a lower paying job. Lastly, you believe that this Commission should request an amendment to the Ethics Law from the General Assembly to provide clear guidelines for applying Section 3(g) to different circumstances. III. DISCUSSION: We have been asked to reconsider Long, Opinion No. 97 -010. We would initially note that this Commission may exercise broad discretion in determining whether to grant or deny reconsideration, if such discretion is exercised in a sound manner. Krane, Opinion No. 84- 001 -R; PSATS v. State Ethics Commission, 499 A.2d 735 (Pa. Commw. Ct.1985). The Regulations of this Commission provide: §13.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. (b) Finality; reconsideration. Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these Long, 97 -010 -R August 26, 1997 Page 4 could not be or were not discovered by the exercise of due diligence. 51 Pa.Code, §§13.3(d); 21.29(b), (e). We must now determine whether you have met the criteria for reconsideration. We conclude that you have not met the criteria, and that your request for reconsideration must be denied. No new facts or evidence have been submitted nor has any material error of fact been alleged. In the absence of any new facts or evidence or any material error of fact, the sole remaining basis for granting reconsideration would be an error of law. We find none. You contend that Section 3(g) was not intended to apply to retirees, but was designed to prevent an incumbent public official /public employee from setting up for himself a better job in the private sector before leaving his public position. The argument is unfounded. There is a different Section of the Ethics Law, Section 3(a), which applies to prohibit such so- called "sweetheart" arrangements while the public official /public employee is in his public position. The purpose of Section 3(g), on the other hand, is to prevent public officials and public employees from using the connections and influence they obtained while working with the governmental body for the benefit of private "persons" during the first year following termination of their public service. As for your view that Section 3(g) should not be applied to employees who have earned full retirement, there is no legal basis in Section 3(g) for distinguishing between those employees who retire and those whose employment is terminated either voluntarily or involuntarily before retirement. Under Section 3(g), the circumstances surrounding the termination are legally irrelevant. See, Bergmaier, Opinion No. 97- 004. You question the fairness of the application of Section 3(g) to you, but this Commission cannot exempt you from the restrictions that every other former public official /public employee must observe. Furthermore, while this Commission is the administrative body charged with administering, interpreting, and enforcing the Ethics Law, this Commission does not have the legislative power to carve out exceptions to it. Richardson, Opinion No. 93 -006. In your request for reconsideration, you contend that it would be impossible for you to work in your field without "representing" a new employer to some degree. However, at the public meeting on May 30, 1997, you told us of at least one job opportunity that would not present problems for you under Section 3(g) (Recording of Public Meeting of the State Ethics Commission, May 30, 1997). In that regard, we suggested that such potential employer(s) could contact the Commission's Chief Counsel to alleviate any unfounded concerns about Section 3(g). id, Rather than seeking to "punish" you, as you contend, this Commission has sought to accommodate you to the greatest extent possible within the parameters of the Ethics Law As for your contention that our Opinion criticized you for retiring from PennDOT, such was certainly not our intent. Our intent was simply to note that the Section 3(g) restrictions became applicable to you as a result of your decision to retire, and that Section 3(g) would not prohibit you from resuming employment with PennDOT if you would so choose. Long, 97 -010 -R August 26, 1997 Page 5 Turning to the arguments you raised at the public meeting, these arguments are in part restatements of the arguments you made in your reconsideration request. However, since we want to be thorough in addressing your arguments, we will necessarily be repetitive to some extent. As to your individual arguments, this Commission does not "predetermine" a result and makes every effort to apply the letter and spirit of the Ethics Law to all cases. Likewise, we cannot and do not decide cases in an arbitrary manner or based upon emotion. This Commission does not apply the Ethics Law "carte blanche" but uniformly as enacted by the General Assembly. Regardless of what survey you made, the Ethics Law does not make distinctions between former public employees who retire or those who leave before retirement. Similarly, the Ethics Law in its definition of public employee does not use the word "influence" in establishing the criteria for Ethics Law coverage. Any use of public office or "influence" to obtain a job in the private sector is restricted by Section 3(a) of the Ethics Law. In this case, the applicable provision of the Ethics Law is Section 3(g) which must be applied uniformly; to do otherwise would result in a violation of the equal protection clause of the United States Constitution. Lastly, it is the function of the General Assembly to enact the restrictions in the Ethics Law as it has done; it is our function to administer it. The necessary conclusion is that there was no error of law made by this Commission in deciding Opinion No. 97 -010. There is no question that in your former position with PennDOT you were subject to the Ethics Law, and that you are now a former public employee subject to the Section 3(g) restrictions. We recognize that you have been a valuable asset to PennDOT and that your work has benefitted the Commonwealth of Pennsylvania. We recognize that you strongly desire to continue related work in the private sector. Indeed, the Ethics Law would not preclude you from remaining in the field. Section 3(g) would simply require that you not personally represent "persons" — including any new employer — before your former governmental body which is PennDOT during the one year period. In that there has been no material error of fact or law and in the absence of any new facts or evidence, we must deny the request for reconsideration. IV. CONCLUSION: The request for reconsideration of Long, Opinion No. 97 -010 is denied. 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. the Commis` 'on, Daneen E. Reese Chair Commissioners Austin M. Lee, Vice Chair, and Julius Uehlein dissent.