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HomeMy WebLinkAbout01-525 StalloneGuy Stallone, Jr. 637 Grant Street Franklin, PA 16323 Dear Mr. Stallone: ADVICE OF COUNSEL March 9, 2001 01 -525 Re: Former Public Employee; Section 1103(g); Real Estate Specialist; PennDOT; 95- Day Program; Private Contractor. This responds to your letter of February 1, 2001, 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 Real Estate Specialist following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: From 1968 until your retirement in 1991, you were employed by PennDOT in various capacities in the Right -Of -Way Unit. In October 1999, you returned to work for PennDOT as a Real Estate Specialist. As a Real Estate Specialist, you are involved in acquiring property for a new highway in Erie County. You were informed that you would be permitted to work up to 95 days in a fiscal year. A fiscal year begins on July 1 and ends on June 30. You are now completing your second 95 -day period with PennDOT. You are considering working for a private contractor presently under contract with PennDOT. You state that the contractor is working on the same highway project [in Erie County], but on a different section of the road. Given the above facts, you ask the following questions. 1. Whether you may work for the private contractor on the Erie County highway project; 2. Whether you may work for the private contractor on other projects; and 3. Whether you are permitted to "make contact" with PennDOT employees in District 1 -0. 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 Stallone, 01 -525 March 9, 2001 Page 2 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. You have not submitted a job description for your position as Real Estate Specialist for PennDOT. It will be assumed for purposes of this advisory that the duties and responsibilities of Real Estate Specialist are such 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, so that 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. §1102; 51 Pa.Code §11.1. Consequently, upon termination of public service, you would become 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 Stallone, 01 -525 March 9, 2001 Page 3 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, Confidential 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 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 ublic 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. Although you have not supplied a job description, it would appear from the submitted facts that you work in PennDOT District 1 -0. Therefore, 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, District 1 -0. 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. Stallone, 01 -525 March 9, 2001 Page 4 It is noted that your request involves participation in program that permits a retiree to work for PennDOT for up to 95 "days" in a fiscal year. A "day" is defined as four hours or more. For participants in the "95 -day program,' PennDOT withholds taxes and Social Security, but does not deduct for retirement or hospitalization /health. See, Ickes, Advice of Counsel 99 -535. It is further noted that you terminated employment with PennDOT in 1991 but returned to work for that agency in October 1999 under the "95 -day program." As to your subsequent return to work in October 1999, you once again became a public employee. Upon completion of your second 95 -day period of working for PennDOT, you will once again become a former public employee. Hence, you could not engage in prohibited representation for one year after completing work under the 95 -day program. See, McGlathery, Opinion 00 -004 (where the full Commission held that a public employee who would retire from PennDOT but would subsequently return to work for PennDOT under a program which allows retirees to work up to 95 days per fiscal year would, in so doing, become a "public employee" again. Upon termination of service under that program, the retiree would once again become a former public employee subject to the restrictions of Section 1103(g). The restrictions of Section 1103(g) would apply for a full one year period each time the individual would become a former public employee). Having established the above, your specific inquiries shall now be addressed. With regard to your first question pertaining to working for the private contractor on the Erie County highway project, you state, The Contractor is working on the same highway project but different section of the road." Assuming that in performing such work for the private contractor, no prohibited contacts would occur as to PennDOT and no written materials containing your name would be submitted to PennDOT except within the narrow and limited circumstances permitted by Webster, supra, as set forth above, it would not appear that you would transgress Section 1103(g) of the Ethics Act. With regard to your second question, you would be permitted to work on other projects for the private contractor conditioned upon the assumption that you would not be engaging in prohibited representation before PennDOT during the one -year period of applicability of Section 1103(g). With regard to your third question, you are advised that the restrictions set forth in Section 1103(g) of the Ethics Act extend to your former governmental body in its entirety. Therefore, the prohibition against representation before your former governmental body would include District 1 -0, all other Districts, as well as PennDOT, that is, PennDOT in its entirety. 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. 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 Stallone, 01 -525 March 9, 2001 Page 5 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Real Estate Specialist for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), it is assumed for purposes of this advisory that you are 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 District 1 -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(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