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HomeMy WebLinkAbout02-500 DavisSamuel J. Davis, Esquire Davis & Davis 107 East Main Street P.O. Box 1163 Uniontown, PA 15401 Dear Mr. Davis: ADVICE OF COUNSEL January 8, 2002 02 -500 Re: Former Public Employee; Section 1103(g); Planning and Programming Engineer; Highway Design Manager; PennDOT. This responds to your letter of December 4, 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 Planning and Programming Engineer classified as a Highway Design Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: On behalf of your client, William E. Piper ( "Piper "), you request an advisory and /or "waiver" from the State Ethics Commission based upon the following submitted facts. On August 18, 2001, Piper retired from employment with PennDOT. You have submitted a copy of the job description for Piper's former position and a copy of Piper's resume detailing his work history with PennDOT, which documents are incorporated herein by reference. At the time of his retirement, Piper was working as a Planning and Programming Engineer in PennDOT's Engineering District 12 -0, in which position he was classified as a Highway Design Manager. You parenthetically note that Piper was on annual and medical leave from April 2, 2001, through August 3, 2001. He returned to work at PennDOT on August 6, 2001, and worked two weeks before retiring. Following Piper's retirement, he began a consulting business, "W.E. Piper Consulting, Inc.," to provide services to governmental bodies in transportation matters. You state that such work is critically important for the governmental bodies involved. Davis /Piper, 02 -500 January 8, 2002 Page 2 You have submitted copies of various documents relating to the services which Piper provides, which documents are incorporated herein by reference. The submitted documents include, inter alia: an executed agreement dated August 16, 2001, between W.E. Piper Consulting, Inc. and the Westmoreland County Industrial Development Corporation; a letter dated August 22, 2001, from the Executive Director of the Westmoreland County Industrial Development Corporation to a PennDOT engineer at District 12 -0, referencing the aforesaid contract and the expectation that Piper would be interacting on a regular basis with PennDOT staff; an Invoice dated September 2001 for services rendered by W.E. Piper Consulting, Inc. to Middle Monongahela Industrial Development Association, Inc., which services are stated to have included various meetings /discussions with PennDOT District 12 -0; and various unsigned documents relative to services to Fayette County. Recently, Piper received two written communications from PennDOT raising issues as to the propriety of his performing such consulting work in light of the restrictions of the Ethics Act. You have submitted copies of the PennDOT communications, which are incorporated herein by reference. You state that PennDOT employees have been directed to have no contact with Piper until the matter is resolved. You request an opinion and /or "waiver" allowing Piper to continue his work for governmental bodies through his consulting business without being in violation of the Ethics Act. To the extent Piper would not be able to do such work for compensation, you seek an opinion as to whether his doing the work for no fee would violate the Ethics Act. 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. It is further noted that, pursuant to the same aforesaid Sections of the Ethics Act, 65 Pa.C.S. §1107(10), (11), an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. In the former capacity as a Planning and Programming Engineer, classified as a Highway Design Manager, for PennDOT's Engineering District 12 -0, Piper 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. 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. Davis /Piper, 02 -500 January 8, 2002 Page 3 Consequently, upon termination of public service, Piper 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 or starting his own business, 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, 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. Davis /Piper, 02 -500 January 8, 2002 Page 4 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. The governmental body with which Piper is considered to have been associated upon termination of public service is PennDOT in its entirety including, but not limited to, Engineering District 12 -0. Therefore, for the first year after termination of Piper's service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before PennDOT. The one year period of applicability of Section 1103(g) would commence the day following Piper's official termination date. Having set forth the restrictions of Section 1103(g), your specific questions /requests shall now be addressed. As noted above, you request an opinion and /or "waiver" allowing Piper to continue his work for governmental bodies through his consulting business without being in violation of the Ethics Act. To the extent Piper would not be able to do such work for compensation, you seek an opinion as to whether his doing the work for no fee would violate the Ethics Act. With regard to whether Piper may prospectively provide transportation - related services to governmental bodies through his consulting business, as noted above, Section 1103(g) would only restrict Piper from engaging in prohibited representation before his former governmental body, PennDOT; Section 1103(g) would not apply to restrict Piper's conduct before governmental bodies other than PennDOT. Thus, to the extent that Piper would perform such consulting work without engaging in prohibited representation before PennDOT during the one—year period of applicability of Section 1103(g), Piper would not transgress Section 1103(g) of the Ethics Act. Davis /Piper, 02 -500 January 8, 2002 Page 5 With regard to Piper's provision of services for no fee, you are advised that in the absence of promised or actual compensation, one of the essential elements for a violation of Section 1103(g) would be lacking. See, Antico, Order 1061. Finally, you are advised that the Ethics Act does not provide for waivers of the applicability of the restrictions of Section 1103(g). The State Ethics Commission does not have the authority to grant that which is not authorized by law. See, Richardson, Opinion No. 93 -006; Ziegler, Opinion No. 98 -001. As the Commission stated in Ziegler, supra: [T]his Commission is duty -bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section 3(g) restrictions to apply to all former public officials /public employees. There is no mention in the statute of any "variances" or "exceptions." Obviously, the facts in any given case may be more or less compelling than in others, but the law must be applied fairly and uniformly. Id. at 6. Similarly, in this matter, the State Ethics Commission would not have the power to grant a "waiver" of the Section 1103(g) restrictions because such are not authorized by 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. 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 Planning and Programming Engineer, classified as a Highway Design Manager, for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), William E. Piper ( "Piper ") would be considered a "public emplo ee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seq. "Ethics Act "). Upon termination of service with PennDOT, Piper became 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 12 -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. Davis /Piper, 02 -500 January 8, 2002 Page 6 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