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HomeMy WebLinkAbout02-547 SecristJohn Secrist 6613 Shady Avenue Finelyville, PA 15332 ADVICE OF COUNSEL April 4, 2002 02 -547 Re: Former Public Employee; Section 1103(g); County Maintenance Manager; District 12 -1; PennDOT; 95 -Day Program. Dear Mr. Secrist: This responds to your letter of March 5, 2002, 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 part -time annuity employee who is responsible for overseeing the operations at the Washington County 12 -4 Maintenance Office, and the programming of PennDOT force projects in three other counties within District 12 -4, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: On January 25, 2001, you retired from PennDOT as a County Maintenance Manager in District 12 -4, which is headquartered in Washington County. You state that District 12 -4 is part of Engineering District 12 -0. You have submitted a copy of your job description for your former position, which is incorporated herein by reference. Since your retirement, you have been working part -time for PennDOT as an annuity employee overseeing the operations at the Washington County 12 -4 Maintenance Office, and the programming of PennDOT force projects in three other counties within District 12 -4. You are not involved in any way in the selection, priority or design of any contracted work outside of Washington County, District 12 -4. You have been offered a job with a local paving company. In your new position, you would be in charge of asphalt paving in Westmoreland County, District 12 -5 and Fayette County, District 12 -1, both of which are part of Engineering District 12 -0. You seek an advisory as to the restrictions that will apply to you under the Ethics Act after you terminate service with PennDOT. Secrist, 02 -47 April 4, 2002 Page 2 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. You have submitted a job description for your former position as a County Maintenance Manager for PennDOT, but not for your current position as a part -time PennDOT annuity employee. If your current job duties are essentially the same as a County Maintenance Manager or are encompassed within the statutory definition below or the regulations, 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 your former 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 ": §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, Secrist, 02 -47 April 4, 2002 Page 3 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 ublic 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 former public official /public employee may not be identified on documents submitted to the former governmental body. The former 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 Secrist, 02 -47 April 4, 2002 Page 4 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 Engineering District 12 -0, which includes District 12 -4. 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. You state that you are currently a part -time annuity employee for PennDOT. It is assumed that you are participating in a 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 on January 25, 2002, but returned to work for that agency under the "95 -day program." As to your subsequent return to work, you once again became a public employee. Upon completion of the 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). You state that in your new position with a local paving company, you would be in charge of asphalt paving in Districts 12 -5 and 12 -1, which are part of Engineering District 12 -0. Assuming that in performing such work for the paving company, 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, you would not transgress Section 1103(g) of 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. Secrist, 02 -47 April 4, 2002 Page 5 Conclusion: If your current job duties as a part -time annuity employee for PennDOT are essentially the same as a County Maintenance Manager for PennDOT or are encompassed within the statutory definition or regulations, 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, Engineering District 12 -0, which includes District 12 -4. 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