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HomeMy WebLinkAbout01-605 YorksCharles L. Yorks, II 235 Linnwood Drive Lock Haven, PA 17745 Re: Public Employee; Section 1103(g); Transportation Community Relations Coordinator 2; PennDOT; consulting firm. Dear Mr. Yorks: ADVICE OF COUNSEL December 3, 2001 01 -605 This responds to your letter dated October 26, 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 Transportation Community Relations Coordinator 2 following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You are currently a Transportation Community Relations Coordinator 2 with PennDOT, having served in this position for over five years. Instead of a job description and an organizational chart, you have submitted a job posting for your position, which is incorporated herein by reference. You state that the position of Transportation Community Relations Coordinator 2 is a non — certified, non —civil service, pay range 7 position in Engineering District 2 in Clearfield, Pennsylvania. You further state that you are not required to file a Statement of Financial Interests. You are not responsible for setting policy. You do not provide advice with regard to the award of contracts, nor do you actually award contracts to consultants or contractors. Instead, you serve as a PennDOT liaison to advise customers, including citizens, legislators, municipal representatives, and partners, on public relations matters and press activities. You also write press releases, prepare internal communications and speak to the news media about PennDOT's mission, vision and activities in District 2. In addition, you engage in community relations activities with firms and individuals by speaking at public gatherings to stress PennDOT's strategic goals and objectives. The essential functions set forth in the job description for your position include supervising a small subordinate staff, preparing standards of performance for subordinates, and rating actual performance against that which is expected. You have accepted a position at Lock Haven University as a coordinator of Protest Yorks, 01 -605 December 3, 2001 Page 2 Campus Ministries, which represents the United Methodist, United Lutheran, Episcopal, Presbyterian, and United Church of Christ congregations. Protest Campus Ministries serves students, staff and faculty at Lock Haven University. The position is part —time and involves approximately 20 hours per week during the 34 week school year. Because the Lock Haven position is part —time, you have had to secure other employment. Therefore, you have accepted a part —time position with McCormack, Taylor & Associates, an engineering and environmental consulting firm that provides public involvement services to PennDOT, the Turnpike Commission, local municipalities, and other states. In your new position, you would be responsible for planning public meetings, preparing public plans displays, establishing community advisory committees, and preparing and delivering information services to the general public. You would also be responsible for internal company training. You state that as a contracted partner with PennDOT, you could be working on PennDOT projects. Given that you will be leaving state employment on November 30, 2001, you seek an opinion as to whether the restrictions under Section 1103(g) of the Ethics Act will apply to you. 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. As a Transportation Community Relations Coordinator 2 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. First, your job functions indicate clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to other activities where the economic impact is greater than de minimis on the interests of another person. Second, your job functions specifically include supervising a small subordinate staff, preparing standards of performance for subordinates, and rating actual performance against that which is expected. Both of these factors would meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §11.1, "public employee," subparagraphs (i) and (ii). 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 Yorks, 01 -605 December 3, 2001 Page 3 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. 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. Yorks, 01 -605 December 3, 2001 Page 4 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 2 -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 Section 1103(g) restrictions, it is clear that although the Ethics Act would not preclude you from accepting a position with a multi — denominational board at Lock Haven University, it would restrict your conduct in your new position to the extent that such conduct would constitute "representation" before PennDOT as delineated above. With regard to your accepting a position with an engineering and environmental consulting firm that provides public involvement services to PennDOT, as a practical matter, if your employment with such consulting firm would involve interaction with PennDOT so as to constitute "representation ", then such activities would be prohibited; if such would be the case, it would appear to be impossible for you to perform the functions for your new employer on the PennDOT contract without transgressing Section 1103(g). As the Commission held in Stanisic, Opinion 98 -004: We similarly conclude, as did the Advice of Counsel, that during the first year following termination of your employment with PennDOT, it would be impossible as a practical matter for you to perform the functions of a Construction Inspector working for a consulting firm on PennDOT project(s) without transgressing Section 3(g). In performing inspections of such project(s), you would be acting on behalf of your new employer and would necessarily engage in prohibited representation before your former governmental body, PennDOT. See, Long, Opinion No. 97 -010. Id. at 5. 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. Yorks, 01 -605 December 3, 2001 Page 5 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: As a Transportation Community Relations Coordinator 2 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 including, but not limited to, Engineering District 2 -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