HomeMy WebLinkAbout01-607 DenninEdward A. Dennin, Chief
Employee Safety Division
PennDOT
P.O. Box 3241
Harrisburg, PA 17105 -3253
ADVICE OF COUNSEL
December 4, 2001
01 -607
Re: Former Public Employee; Section 1103(g); Chief; Employee Safety Division;
PennDOT.
Dear Mr. Dennin:
This responds to your letter of November 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 an Employee Safety
Division Chief in the Bureau of Personnel, following termination of service with the
Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: You are currently the Employee Safety Division Chief in the Bureau of
Personnel of PennDOT. You have attached a copy of your job description and
organization chart, which is incorporated herein by reference.
You plan to retire on January 4, 2002 and seek part -time employment with various
safety consultants, some of whom perform work for Commonwealth agencies. You state
that you will refrain from performing work for PennDOT. You maintain that you have not
been involved in the selection of any of the consultants who perform work for the
Commonwealth, which selection was made by the Office of Administration. You assert
that you have arranged for two of the consultants to perform some work for PennDOT
since they were approved by the Office of Administration to be available to Commonwealth
agencies. You state that the total value of these PennDOT projects has been under
$20,000.
You seek an advisory as whether the Ethics Act would impose any restrictions on
your activities as they relate to Commonwealth agencies other than PennDOT, or county
or local governments.
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
Dennin, 01 -607
December 4, 2001
Page 2
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 the Employee Safety Division Chief in the Bureau of Personnel of 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 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 ":
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:
65 Pa.C.S. §1102.
§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.
§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.
Dennin, 01 -607
December 4, 2001
Page 3
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
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 you would be associated upon termination of
public service is PennDOT in its entirety including, but not limited to, the Bureau of
Personnel. 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, you are
advised that although the Ethics Act would not preclude you from accepting employment
with a private consulting firm, it would restrict your conduct in your new position to the
extent that such conduct would constitute prohibited "representation" before PennDOT as
delineated above. Section 1103(g) would not apply to restrict your activities before
Commonwealth agencies other than PennDOT, or county or local governments, as such
would not constitute your former governmental body.
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
Dennin, 01 -607
December 4, 2001
Page 4
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: As the Employee Safety Division Chief in the Bureau of Personnel of
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 is PennDOT in its entirety including, but not
limited to, the Bureau of Personnel. 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 §13.20. 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