HomeMy WebLinkAbout00-628 FioccoJoseph M. Fiocco
36 Trevose Road
Trevose, PA 19053
ADVICE OF COUNSEL
November 21, 2000
00 -628
Re: Former Public Employee; Section 1103(g); District Risk Management Engineer;
Civil Engineer Manager; PennDOT.
Dear Mr. Fiocco:
This responds to your letter of October 16, 2000, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., presents any restrictions upon employment of a District Risk
Management Engineer following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: On October 13, 2000, you retired from your position as the District Risk
1<] arement Engineer for PennDOT in Engineering District 6 -0. You have submitted a
copy of your job description, which is incorporated herein by reference. It is noted that
your class title was "Civil Engineer Manager. '
You state that in your former position, you did not supervise any employees.
However, it is noted that your job description indicates at item 8 that your position was
supervisory.
You are now employed as a Traffic Engineer with Orth- Rodgers and Associates.
You state that Orth- Rodgers and Associates currently has contracts with PennDOT for
engineering services with the Bureau of Highway Safety and Traffic Engineering and also
some of the Engineering Districts. You seek an advisory as to any restrictions that would
be imposed upon you with regard to said contracts.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based
upon the facts which the requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts which have not
been submitted. It is the burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
In the former capacity as a District Risk Management Engineer, classified as a Civil
Engineer Manager, for PennDOT, you would be considered a "public employee" subject to
the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S.
Fiocco, 00 -628
November 21, 2000
Page 2
§1102; 51 Pa.Code §11.1. This conclusion is based upon the job description, which when
reviewed on an objective basis, indicates clearly that the power exists to take or
recommend official action of a non - ministerial nature with respect to one or more of the
following: contracting; procurement; planning; inspecting; administering or monitoring
grants; leasing; regulating; auditing; or other activities where the economic impact is
greater than de minimis on the interests of another person. Consequently, upon
termination of public service, you became a "former public employee" subject to Section
1103(g) of the Ethics Act.
While Section 1103(g) does not prohibit a former public official /public employee
from accepting a position of employment, it does restrict the former public official /public
employee with regard to "representing" a "person" before the governmental body with
which he has been associated ":
§1103. Restricted activities
(g) Former official or employee. - -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 Pa.C.S. §1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public official
or public employee is or has been associated" are specifically defined in the Ethics Act as
follows:
§1102. 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.
"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 Pa.C.S. §1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public employee himself�onfidential Opinion
93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence; (3)
submission of bid or contract proposals which are signed by or contain the name of the
Fiocco, 00 -628
November 21, 2000
Page 3
former public official /employee; (4) participating in any matters before the former
governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion
89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental body,
constitutes an attempt to influence the former governmental body. Section 1103(g) also
generally prohibits the inclusion of the name of a former public official /public employee on
invoices submitted by his new employer to the former governmental body, even though the
invoices pertain to a contract that existed prior to termination of public service, Shay,
Opinion 91 -012. However, if such a pre - existing contract does not involve the unit where
the former public employee worked, the name of the former public employee may appear
on routine invoices if required by the regulations of the agency to which the billing is being
submitted. Abrams/Webster, Opinion 95 -011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public official /public
employee may not be identified on documents submitted to the former governmental body.
The public official /public employee may also counsel any person regarding that person's
appearance before his former governmental body. Once again, however, the activity in this
respect should not be revealed to the former governmental body. The Ethics Act would not
prohibit or preclude making general informational inquiries to the former governmental
body to secure information which is available to the general public, but this must not be
done in an effort to indirectly influence the former governmental body or to otherwise make
known to that body the representation of, or work for the new employer.
Section 1103(g) only restricts the former public official /public employee with regard
to representation before his former governmental body. The former public official /public
employee is not restricted as to representation before other agencies or entities. However,
the "governmental body with which a public official /public employee is or has been
associated" is not limited to the particular subdivision of the agency or other governmental
body where the public official /employee had influence or control but extends to the entire
body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion
No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination of
public service would be PennDOT in its entirety, including, but not limited to, Engineering
District 6 -0. Therefore, for the first year after termination of your service with PennDOT,
Section 1103(g) of the Ethics Act would apply and restrict ``representation" of "persons"
before PennDOT.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that although the Ethics Act would not preclude you from accepting employment
with Orth- Rodgers and Associates, to the extent that your activities would involve
prohibited "representation" as outlined above, you could not perform such activities without
transgressing Section 1103(g) of the Ethics Act.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no use of
authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the
Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act
provide in part that no person shall offer to a public official /employee and no public
official /employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /employee
would be influenced thereby. Reference is made to these provisions of the law not to imply
that there has been or will be any transgression thereof but merely to provide a complete
response to the question presented.
Fiocco, 00 -628
November 21, 2000
Page 4
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code
of conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the
Governor's Code of Conduct.
Conclusion: In the former capacity as a District Risk Management Engineer,
classified as a Civil Engineer Manager, for the Commonwealth of Pennsylvania,
Department of Transportation ( "PennDOT "), you would be considered a "public employee"
subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seq. ( "Ethics
Act"). Upon termination of service with PennDOT, you would become a "former public
employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is
PennDOT in its entirety, including, but not limited to, Engineering District 6 -0. The
restrictions as to representation outlined above must be followed. The propriety of the
proposed conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after termination of service.
Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement
proceeding initiated by the Commission, and evidence of good faith conduct in any other
civil or criminal proceeding, provided the requestor has disclosed truthfully all the material
facts and committed the acts complained of in reliance on the Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason
to challenge same, you may appeal the Advice to the full Commission. A
personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code §13.2( The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or by
FAX transmission (717-787-0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel