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HomeMy WebLinkAbout01-521-C RedmondBrenda Redmond 231 Lexington Drive Phoenixville, PA 19460 Re: Former Public Employee; Section 1103(g); Highway Draftsman - Designer; PennDOT; Consulting Firm; Clarification of Advice; Advice of Counsel No. 01- 521 Dear Ms. Redmond: ADVICE OF COUNSEL April 27, 2001 01 -521 -C This responds to your letter of March 1, 2001, by which you requested clarification of Redmond, Advice 00 -521. 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 Highway Draftsman - Designer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You initially sought an advisory from the State Ethics Commission by letter received on January 30, 2001. In response to your request, Redmond, Advice 00 -521 was issued to you on March 1, 2001, which Advice is incorporated herein by reference. You now seek clarification as to paragraph 2, page 3, of Redmond, Advice 00- 521, which states, if 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." You state that none of the pre- existing contracts that Edwards and Kelcey, Inc., (E &K) have involve PennDOT District 6 -0 Plans Unit. You ask whether your name could appear on routine invoices for billing of projects. You state that in your job at District 6 -0, you have strictly been involved with in- house projects and have never been involved with consultant selections, open agreement, or work orders. You state that you take no proprietary information with you and have done nothing in your career that you believe would be of conflict. However, if E &K cannot include you on routine invoices, they have no way of paying for your work and this would be a financial hardship for you. Discussion: As noted in Redmond, Advice, supra, you are a public employee as that term is defined in the Ethics Act and hence you are subject to the provisions of the Act. Upon termination of employment, you would become a former public employee subject to the provisions of Section 1103(g) of the Ethics Act. In that Redmond, supra, is incorporated by reference, the quotations and commentary as to the Ethics Act will not be repeated. Redmond, 01 -521 -C April 27, 2001 Page 2 After quoting from the Advice regarding matters involving invoices from units other than where the former public employee works, you note that E &K has no involvement with District 6 -0 Plans Unit and ask whether your name may appear on routine invoices. Your inquiry relates to the Commission's decision in Abrams/Webster, Opinion 95 -011, which was cited in the base Advice. In order for Abrams/Webster to apply, four conditions must be met: 1. There must be a preexisting contract between the employer and PennDOT; 2. The invoice must be routine in nature; 3. The invoice must be to a different unit other than where the former public employee worked; and 4. There must be an agency regulation requiring the inclusion for the submitted billing. Only if all of the above conditions are met may the name of the former public employee be submitted; otherwise, the submission would be prohibited representation contrary to Section 1103(g) of the Ethics Act. For a specific application of the above, if E &K had a preexisting contract with PennDOT at a District other than 6 -0 and PennDOT regulations required the inclusion of E &K's employees names on its invoices, your name could appear on such routine invoices. If the factual scenario was other than the above, such submission of your name to PennDOT would be prohibited representation contrary to Section 1103(g) of the Ethics Act. Lastly, the Commission has noted that there is no statutory mechanism to grant waivers or exceptions as to the above. See, Long, Opinion 97 -010. 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. Conclusion: As Highway Draftsman - Designer 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 would be PennDOT in its entirety. 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. Redmond, 01 -521 -C April 27, 2001 Page 3 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(h). 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