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HomeMy WebLinkAbout98-004 StanisicOPINION OF THE COMMISSION Joseph T. Stanisic, Jr. 1073 High Street Oberlin- Steelton, PA 17113 Dear Mr. Stanisic: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Boyd E. Wolff Julius Uehlein Louis W. Fryman DATE DECIDED: 5/1/98 DATE MAILED: 5/11/98 98 -004 Re: Former Public Employee; Section 3(g); Transportation Construction Inspector Supervisor; PennDOT; Appeal of Advice. This Opinion is issued in response to your appeal of Stanisic, Advice of Counsel, No. 98 -520 which was issued on March 4, 1998. 1. ISSUE: Whether the Public Official and Employe Ethics Law presents any restrictions upon employment of a transportation construction inspector supervisor following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. II. FACTUAL BASIS FOR DETERMINATION: By letter dated March 9, 1998, received March 11, 1998, you timely appealed Advice of Counsel No. 98 -520, issued March 4, 1998. In your initial letter requesting an advisory, you submitted facts which may be fairly summarized as follows. You retired from the Commonwealth of Pennsylvania, Department of Transportation ( PennDOT) on June 28, 1997 where you worked in District 8 -0 as a Transportation Construction Inspector Supervisor, which is a first -level supervisory position. You had involvement with the Route 30 construction project that is ongoing in Lancaster County. Your duties specifically included supervising both PennDOT and "engineer consulting firm " - supplied construction inspectors. You answered to an "on- project" PennDOT Project Engineer and PennDOT Project Manager. Stanisic, 98 -004 May 11, 1998 Page 2 You now desire to return to work. You state that the same Project Manager to whom you reported while working for PennDOT wants you to return to work on this project. The Project Manager and the PennDOT Assistant Construction Engineer for the area have discussed your return, and are waiting for your answer. You state that you would be employed by the engineering firm which has contracted with PennDOT to supply inspectors, and that it, too, is waiting for your answer. Noting that you would like to return to work by March 15, 1998, you seek an advisory as to any restrictions imposed upon you by the Ethics Law that would affect your eligibility for employment as a consulting firm Construction Inspector. You submitted a copy of your most recent job description for your position with PennDOT, which is incorporated herein by reference. It is noted that your duties as a Transportation Construction Inspector Supervisor included working as the inspector -in- charge of certain types of highway construction projects and serving as an assistant on other, larger projects by supervising assigned operations. You assigned and reviewed work, provided necessary training, and supervised the inspection and placement of all materials and the inspection of workmanship for compliance with contract requirements and established departmental standards and specifications. You interpreted contract requirements to contractors and subordinates and performed various other related duties. Advice of Counsel No. 98 -520 concluded that upon termination of your service in your former position with PennDOT, you became a former "public employee" subject to Section 3(g) of the Ethics Law. The Advice of Counsel outlined those restrictions that would apply to you as a former public employee for the first year following termination of your employment with PennDOT. The Advice stated that your former governmental body would be PennDOT is its entirety. The Advice further stated: As a practical matter, it would appear to be impossible for you to function as Construction Inspector on PennDOT projects without running afoul of the above restrictions [of Section 3(g)] in that you would be representing your new employer as to the project of your former governmental body. Stanisic, Advice No. 98 -520 at 3. In the letter by which you appealed the Advice of Counsel, you did not delineate the nature of your objection to the Advice of Counsel. Rather, you simply indicated that you disagreed with it and that you were exercising your right to appeal. By letter dated April 15, 1998, you were notified of the date, time and location of the public meeting at which your appeal was to be considered. At the public meeting on May 1, 1998, you appeared and offered commentary, which may be fairly summarized as follows. You state that PennDOT's lower tier inspectors, including first -level supervisors, are represented by a bargaining unit. On any given construction project, inspectors and supervisors, whether working directly for PennDOT or for a consulting firm, report to a PennDOT representative who is on site every day. That individual is a "project manager" or a "project engineer." You state that inspectors and supervisors never have the opportunity to "represent" PennDOT with regard to personal appearances, negotiations, lobbying, Stanisic, 98 -004 May 11, 1998 Page 3 submitting bids, or reviewing contracts, nor are they involved in advising or approving anything like that. In your words, they are basically construction inspectors in the field. You state that activities such as lobbying and contracting are performed at a higher level. You state that PennDOT has an engineer who reviews each consulting firm's list of inspectors that it plans to provide on a project. The necessary qualifications include a certain certification, a four -year engineering degree, and at least two years of engineering experience. Experienced and seasoned inspection personnel from outside of PennDOT are at a premium. You state that the engineering firms are telling PennDOT right now that they cannot staff their projects. You have been informed specifically with regard to the Route 30 construction project in Lancaster that they are "in a bind" with staffing. You state that these consulting firms cannot simply hire people "off the street" as inspectors. You ask this Commission to consider who else but seasoned inspectors should be on a construction project. Furthermore, you point out that with the 30 -year retirement window returning; PennDOT will be losing even more people and will be going to these consulting firms to ask them to supply the projects. You state that the necessary people are not going to be there to do it. You state that the inspector supervisor would be inspecting the contractor's workmanship according to PennDOT specifications, and that he would be representing the best interests of PennDOT as well as his engineering firm employer. You point out that if the inspector supervisor would not do a good job, the on -site project manager or project engineer who would be monitoring his performance would have the right to remove him at any time (in contrast to PennDOT or other state personnel). While you agree with the idea of having safeguards as to conflicts of interest in place, you do not believe that working as a construction inspector for a consultant engineering firm would be detrimental to PennDOT's goals. You feel that the construction inspector in that scenario would still be representing PennDOT's best interests. As for submission of the construction inspector's name to PennDOT, you state that such would occur as a result of the construction inspector's preparation of a daily field inspector's diary, which he would sign to vouch for his activities. You do not believe that such would be particularly significant. You emphasize that the engineering firm that the inspector would be employed by would already have been contracted by PennDOT, and that the construction inspector would have had no say in the matter. Noting that in approximately two months, the one -year period of applicability of Section 3(g) will expire for you, you state that you are before the Commission not so much for yourself as for the future of the Department. You contend that if there must be a period of "inactivity" following termination from PennDOT, it should be for a shorter period of time. Finally, you state that you have no objection to completing the Statement of Financial Interests form and have done so for many years. III. DISCUSSION: Our review of this matter is de novo. It is clear, and from the context of your submissions it would appear that you do not contest the fact, that in your former capacity as a Transportation Construction Inspector Supervisor for PennDOT, you were a "public employee" subject to the Stanisic, 98 -004 May 11, 1998 Page 4 provisions of the Public Official and Employee Ethics Law. Our review of your job description confirms that conclusion. Specifically, you were responsible for taking or recommending official action of a nonministerial nature with regard to highway construction /inspection work, which official action had a greater than de minimis economic impact. See, 65 P.S. §402 and 51 Pa. Code §11.1 (definition of "public employee "). 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 (a) 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: 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. 65 P.S. §402. Based upon our review, the Advice of Counsel properly concluded that your former governmental body is all of PennDOT and not merely Engineering District 8 -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 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 Stanisic, 98 -004 May 11, 1998 Page 5 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 8 -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. We similarly conclude, as did the Advice of Counsel, that during the first year following termination of your employment with PennDOT, it would be impossible as a practical matter for you to perform the functions of a Construction Inspector working for a consulting firm on PennDOT project(s) without transgressing Section 3(g). In performing inspections of such project(s), you would be acting on behalf of your new employer and would necessarily engage in prohibited representation before your former governmental body, PennDOT. See, Long, Opinion No. 97 -010. With regard to the various arguments that you proffered, while the Commission does not question your motivation with regard to your proposed service as a construction inspector on PennDOT projects during the one -year period of applicability of Section 3(g), 'the Commission is duty -bound to enforce the Ethics Law as it has been promulgated by the General Assembly. The statute provides that Section 3(g) applies for one year. We have no latitude to reduce its application to a shorter period of time. Furthermore, there is no question that Section 3(g) as it has been interpreted and applied by this Commission would prohibit the sort of conduct in which you would necessarily engage as a construction inspector on PennDOT projects. Regardless of your obvious good intentions and motivations, there is no basis within the statute to permit what would clearly be representation of a new employer before your former governmental body, PennDOT, during the one -year period of applicability of Section 3(g). However, it is noted that in your case, the one -year period of applicability of Section 3(g) will expire as of June 28, 1998, that is, in approximately seven weeks. Advice of Counsel, No. 98 -520 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 Inspector Supervisor 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 district(s) served. The restrictions of Section 3(g) are accurately set forth in the Advice of Counsel, which must be observed. Advice of Counsel No. 98 -520 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. Stanisic, 98 -004 May 11, 1998 Page 6 Finally, a party 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 party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, au,..) Daneen E. Reese Chair Vice Chair Austin M. Lee dissents.