HomeMy WebLinkAbout01-543 EvansJacqueline A. Evans, P.E.
174 Wises Grove Road
New Brighton, PA 15066
Dear Ms. Evans:
ADVICE OF COUNSEL
April 25, 2001
01 -543
Re: Former Public Employee; Section 1103(g); Senior Civil Engineer and Partnership
Coordinator; Engineering District 11 -0; PennDOT.
This responds to your letter of March 13, 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.
et seq., presents any restrictions upon employment of a Senior Civil Engineer and
artnership Coordinator following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: From 1984 to 1985, you were a Civil Engineer Trainee for PennDOT in District
11 -0, completing a 15 -month training program. From 1985 to 1991, you worked as a Civil
Engineer 2, Roadway Designer in the District 11 -0 Plans Unit. From 1991 until your
retirement on January 22, 2001, you served as a Senior Civil Engineer and Partnership
Coordinator in Engineering District 11 -0. You have submitted a copy of a job description for
your latest position, which job description is incorporated herein by reference.
As a Senior Civil Engineer and Partnership Coordinator, you were responsible for
overseeing and coordinating the development of roadway design plans for the District's
partnership projects. Your job involved daily interaction, communication and coordination of
the activities of design consultants and municipalities participating in the various partnership
projects. You were also a designer for several District 11 -0 in -house roadway projects.
On May 22, 2000, you began your approved parental leave from PennDOT. You
subsequently requested a six -month extension of your parental leave. PennDOT's denial of
your request led to your retirement.
On February 23, 2001, you accepted an offer from Larson Design Group, Inc. ("LDG ")
to work as a part -time Senior Engineer for their Southpointe Industrial Park office in
Canonsburg, Pennsylvania on an as- needed basis. LDG provides comprehensive
architectural, engineering and surveying services.
Given the above facts, you pose the following questions.
1. Whether the fact that you have not been an "active" Commonwealth employee
since your parental leave began on May 22, 2000 affects the period of restricted activity, and
whether there are any exemptions regarding this time period;
Evans, 01 -543
April 25, 2001
Page 2
2. Whether you may have direct contact concerning projects with personnel at the
PennDOT Engineering District 11 -0 Office, other PennDOT District offices, or the PennDOT
Harrisburg Office;
3. Whether you may participate in the design of projects for PennDOT and bill for
your services provided your name is not directly related to submissions (except on invoices)
or a part of the approval process. Whether any restrictions relating to such activities would
apply to Engineering District 11 -0 or all PennDOT engineering districts.
4. Whether there are any restrictions regarding PennDOT personnel and
PennDOT projects in Engineering District 11 -0, other statewide engineering district offices, or
the Harrisburg Central Office;
5. Whether there are any restrictions regarding your dealings with the
Pennsylvania Turnpike Commission;
6. Whether there are any restrictions regarding your dealings with local
municipalities that use only local and federal funds for transportation projects, and whether
there are any restrictions if State funds are involved; and
7. Whether there are any limitations in dealing with other State, Federal or local
agencies.
Further, you ask whether you may obtain a copy of the "legal reference" that controls
your activities as well as a general statement of the intent of the law.
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 Senior Civil Engineer and Partnership Coordinator 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. §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 rohibit 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
Evans, 01 -543
April 25, 2001
Page 3
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 oft 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 public official /public
Evans, 01 -543
April 25, 2001
Page 4
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.
As for the intent of the law, the Commission stated in Shay, Opinion No. 91 -012:
This Commission has long recognized that the Legislative intent in
promulgating Section 3(g) of the Ethics Law was to protect the public trust, such
that a public official /employee must act consistently with the public trust and
upon leaving public service, may not utilize his association with the public
sector, officials or employees to secure treatment or benefits for himself or his
new employer that may only be obtainable because of his association with his
former governmental body.
Id. at 3. Additionally, it is noted that Act 9 of 1989 significantly broadened the definition of the
term "governmental body with which a public official or public employee is or has been
associated." It was the specific intent of the General Assembly to define the term so that it
was not merely limited to the area where a public official /employee had influence or control
but extended to the entire governmental body with which the public official /employee was
associated. That intent is reflected in the legislative debate relative to the amendatory
language for the above term:
We sought to make particularly clear that when we are prohibiting for 1
year that revolving -door kind of conduct, we are dealing not only with a
particular subdivision of an agency or a local government but the entire unit . . ."
Legislative Journal of House, 1989 Session, No. 15 at 290, 291.
The governmental body with which you were associated upon termination of public
service is PennDOT in its entirety including, but not limited to Engineering District 11 -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, your specific
inquiries shall now be addressed.
As for your first inquiry, you would be restricted from engaging in prohibited
representation for one year after you terminated service with PennDOT. The one year
prohibition is not based upon the last day you worked but upon termination of service. In this
regard, you have stated that your effective retirement date was January 22, 2001. The fact
that you were on parental leave did not trigger the commencement of the one year period,
given that you were still in an employment status.
Evans, 01 -543
April 25, 2001
Page 5
In Mattern, Opinion 98 -007, a former employee of the Department of Environmental
Protection challenged the requirement of filing a Financial Interests Statement ( "FIS ")
because she was on leave of absence from January 1997 until she resigned in September
1997. The Commission in concluding that Mattern had to file the FIS noted:
While on leave, you continued to hold the status of a public
employee. Since Section 4(a) contains no exceptions or
exemptions based upon leaves of absence, a straightforward
application of the law mandates the conclusion that your leave of
absence would not abrogate your duty to file.
Id., at 3 (Emphasis added).
As for your second inquiry, you would be prohibited from having direct contact with
PennDOT personnel during the first year following termination of your service from
PennDOT. Furthermore, as noted above, the governmental body with which you have been
associated upon termination of public service is PennDOT in its entirety, including, but not
limited to District 11 -0 and any other PennDOT district office.
As for your third inquiry, you may participate in designing projects for PennDOT
provided that in performing such services, no written materials containing your name would
be submitted to PennDOT, except within the narrow and limited extent permitted by Webster,
supra, as set forth above. Section 1103(g) of the Ethics Act would prohibit you from including
your name on invoices submitted to PennDOT if those invoices would be reviewed by
PennDOT. This prohibition would apply to restrict you with regard to all of PennDOT,
including, but not limited to District 11 -0 and any other PennDOT district office.
As for your fourth inquiry, Section 1103(g) of the Ethics Act would prohibit you from
contacting or communicating with PennDOT personnel where written materials containing
your name would be submitted to PennDOT or where your identity in undertaking
responsibilities on behalf of your new employer would otherwise be revealed to PennDOT.
As to PennDOT projects, be advised that to the extent that your activities with regard to such
projects would involve prohibited "representation" as outlined above, you could not perform
such activities without transgressing Section 1103(g) of the Ethics Act. As to the foregoing,
the restrictions of Section 1103(g) would apply to PennDOT in its entirety.
As for your fifth inquiry, the Section 1103(g) restrictions would not apply to your
dealings with the Pennsylvania Turnpike Commission because that is not your former
governmental body.
As for your sixth inquiry, you would not be prohibited from dealing with municipalities
that use local, state and /or federal funds provided that such dealings would not involve
prohibited contacts with PennDOT as outlined above.
As to your seventh inquiry, the restrictions under Section 1103(g) would only apply to
your former governmental body, that is, PennDOT in its entirety.
Your final two inquiries as to the "legal reference" that controls your activities and the
intent of the law have been fully addressed above.
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
Evans, 01 -543
April 25, 2001
Page 6
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 Senior Civil Engineer and Partnership
Coordinator tor 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 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 11 -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