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HomeMy WebLinkAbout02-579 RussellKara H. Russell Historic Preservation Specialist Bureau of Environmental Quality PennDOT PO Box 3790 Harrisburg, PA 17105 -3790 02 -579 Re: Former Public Employee; Section 1103(g); Cultural Resource Specialist - Architectural History; Historic Preservation Specialist; Bureau of Environmental Quality; PennDOT. Dear Ms. Russell: ADVICE OF COUNSEL July 23, 2002 This responds to your letter of June 20, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 §1101 et seq., presents any restrictions upon employment of a Cultural Resource Specialist- Architectural History, classified as a Historic Preservation Specialist, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: You are currently employed by the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). You have submitted copies of your job description, ADA Essential Functions Appendix, and organizational chart, all of which documents are incorporated herein by reference. Per ourjob description, your working title is "Cultural Resource Specialist - Architectural History," you are classified as a Historic Preservation Specialist, and you work in the Bureau of Environmental Quality. However, according to your letter of inquiry, you work in the Bureau of Design, Environmental Quality Assurance Division. This inconsistency in the submitted facts is immaterial and need not be resolved in order to respond to your request. You state that your current job responsibilities include assisting PennDOT district architectural historians with problems that arise as projects move through the environmental clearance process, and assisting in developing oral and written guidance to PennDOT staff regarding the application of historic preservation laws and regulations. Per your job description, your duties include, inter alia, the following: assisting in developing and implementing PennDOT's cultural program into the planning, design, construction, maintenance and operation of transportation facilities; serving as PennDOT's lead architectural historian to oversee the technical guidance for Department work involving architectural historic and historic resources; resolving architectural historic and historic resource issues; managing PennDOT's statewide Russell 02 -579 July 23, 2002 Page 2 historic bridge management program, which includes developing a management plan, completing the historic bridge survey, developing policy and best practices for the preservation of historic bridges, organizing and conducting training, and promoting public support; supporting the development of PennDOT policies and procedures; and representing PennDOT on statewide and international interagency committees and task forces relating to architectural historic and historic resources. You are considering leaving Commonwealth employment to accept employment in the private sector with ASC Group, Inc. ( "ASC Group "), a small environmental services company that performs environmental compliance work for a number of companies as well as state and federal agencies. You state that although ASC Group works primarily in Ohio, the company recently established an office in Harrisburg, Pennsylvania. You state that in fiscal year 2002, ASC Group entered into an agreement with Gannett Fleming, Inc. ( "Gannett Fleming ") to provide support to Gannett Fleming in an open-end contract which Gannet Fleming executed with PennDOT's Bureau of Design. You further state that the contract between PennDOT and Gannett Fleming, as well as the contract between Gannett Fleming and ASC Group, were undertaken without your personal knowledge, assistance, or influence of any kind. You state that you presently have no supervisory or other responsibility for the implementation or administration of the contract between PennDOT and Gannett Fleming and that you would not acquire such responsibility if employed by ASC Group. You state that a position with ASC Group may involve providing temporary assistance to PennDOT Districts 5 -0 and 8 -0, primarily in reviewing and processing cultural resource compliance reports and providing project guidance on context sensitive solutions for projects affecting historic resources. You state that such assistance would be needed while PennDOT would be seeking a candidate to fill a vacancy for the District Architectural Historian position. You state that your field is extremely narrow, involving transportation and Section 106 of the National Historic Preservation Act compliance, and that it is virtually impossible to locate employment that is not in some way connected to transportation and PennDOT without moving to another state or working outside your field and area of expertise. You further state that you would have no involvement with negotiations, contract implementation or administration, proposals or lobbying, nor would you have any supervisory responsibility or direct involvement with the expenditure of public funds. Based upon the foregoing facts, you ask whether your prospective employment with ASC Group would transgress 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. As a Cultural Resource Specialist- Architectural History, classified as a Historic Preservation Specialist 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 Russell 02 -579 July 23, 2002 Page 3 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, 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-hiimself, 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; Russell 02 -579 July 23, 2002 Page 4 (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 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 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, the particular Bureau or Division in which you are currently working. Therefore, for the first year following termination of your service with PennDOT, Section 1103((gq)) 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 ASC Group, it would restrict your conduct in your new position to the extent that such conduct would constitute prohibited "representation" before PennDOT as delineated above. Prohibited representation would include, in particular, providing temporary assistance to PennDOT Districts 5 -0 and 8 -0 on behalf of your new employer. 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) oft the Ethics Act provide in part that no person shall offer to a public official /employee and no Russell 02 -579 July 23, 2002 Page 5 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 a Cultural Resource Specialist - Architectural History, classified as a Historic Preservation Specialist 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. 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(hl. 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