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HomeMy WebLinkAbout99-603 SzcuzurDorothy C. Boring R.D. #1, Box 238C Bolivar, PA 15923 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 15, 1999 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.oa.us 99 -603 Re: Former Public Employee; Section 1103(g); Senior Civil Engineer Supervisor Transportation; Maintenance; PennDOT. Dear Ms. Boring: This responds to your letter of August 10, 1999 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 gt seq., presents any restrictions upon employment of a Senior Civil Engineer Supervisor Transportation and an Assistant Highway District Engineer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You and your partner, Joseph J. Szcuzur, seek a determination as to whether, in your capacity as former PennDOT employees, you and your engineering firm are subject to any restrictions imposed by the Ethics Act relating to performing work with PennDOT. You left your position as Senior Civil Engineer Supervisor Transportation for PennDOT, on March 5, 1999. Your partner, Joseph J. Szczur, who has authorized you to seek an advisory on his behalf, left his position as Assistant Highway District Engineer for PennDOT, on August 6, 1999. You have enclosed job descriptions of both positions which are included herein by reference. You are aware of the existence of a one year period of restricted activity following termination from public office or employment; however, you are not familiar with the details of this restriction and the extent to which the restriction applies to you and your engineering firm. You request answers to the following questions: 1) To what does the one year restriction specifically apply? 2) Is the engineering firm permitted to secure work with PennDOT on March 6, 2000 or August 7, 2000? Boring 99 -603 September 15, 1999 Page 2 3) Are you permitted to secure work with other state agencies such as the Department of General Services, Environmental Protection Agency, or Fish & Game Commission? 4) Are you permitted to work with an agency which is responsible for the design of a project where the construction contract will be administered by PennDOT: as for example, the Turnpike Commission designs the project and PennDOT administers the construction contract; a municipality designs a traffic signal system and PennDOT administers the construction contract; or a contractor bids a PennDOT project which requires construction scheduling services. You ask whether you are permitted to perform the scheduling services in such instances. You seek an advisory regarding how your and your partner's former employment with PennDOT affect both of you and the work your engineering firm will be permitted to secure. Discussion: In the former capacities as Senior Civil Engineer Supervisor Transportation and Assistant Highway District Engineer for PennDOT, you and your partner would be considered "public employees" 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 descriptions, which when reviewed on an objective basis, indicates clearly that, in both positions, 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 and your partner became "former public employees" 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 ": Section 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. §1103(g) (Emphasis added). terms "represent," "person," and "governmental body with which a public public employee is or has been associated" are specifically defined in the as follows: 65 Pa.C.S The official or Ethics Act Section 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 Boring 99 -603 September 15, 1999 Page 3 65 Pa.C.S. §1102. 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. The term "Person" is very broadly defined. It includes, inter DIA, 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. P000vich, 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. Boring 99 -603 September 15, 1999 Page 4 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; SiroIli Opinion No. 90 -006; Sham, Opinion 90- 009 -R. The governmental body with which you and your partner were associated upon termination of public service is PennDOT in its entirety. 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. 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. We will now specifically address the four inquiries you posed in your advisory request. As to your first inquiry, the restriction applies to you and your partner as former public employees, but not to the engineering firm itself. As to your second and third questions, you would be restricted from the activities outlined in Section 1103(g) as set forth above until March 5, 2000. Likewise, your partner, Mr. Szczur, would be restricted from such activities until August 6, 2000. Regarding your inquiry as to whether you and your partner may secure work with other state agencies, Section 1103(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The Act does not prohibit the former public official /public employee from representing a person before other agencies or entities. However, you and your partner must exercise caution in performing your responsibilities with the other state agencies so that you would not engage in activities which would constitute prohibited representation before PennDOT as outlined above. In response to your final area of inquiry, as noted above, Section 1103(g) of the Ethics Act would not prohibit you or your partner from working with another agency, municipality or contractor; however, in so doing, neither you nor your partner would be permitted to engage in activities which would constitute prohibitive representation before PennDOT as delineated above. 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. Serino 99 -603 September 15, 1999 Page 5 Conclusion: In the former capacities as Senior Civil Engineer Supervisor Transportation for the Commonwealth of Pennsylvania and Assistant Highway District Engineer for the Department of Transportation ( "PennDOT "), you and your partner would be considered a "public employees" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. 51101 et seq. ( "Ethics Act "). Upon termination of service with PennDOT, you and your partner would become "former public employees" subject to Section 1103(g) of the Ethics Act. The former governmental body is 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(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. Vincent J. Dopko Chief Counsel