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HomeMy WebLinkAbout99-583C KippPhil Grawemeyer Director of Acquisition Services The Presnell Group Corporate Headquarters 707 West Main Street Louisville, KY 40202 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL November 2, 1999 FAX: (717) 787 -0806 • Web Site: www.ethics.state ,pa.us • e -mail: ethics @state.oa.us 99 -583C Re: Former Public Employee; Section 1103(g); Real Estate Appraiser Supervisor; Engineering District; PennDOT. Dear Mr. Grawemeyer: This responds to your letter of October 1, 1999 by which you requested clarifying advice of Kgo 99 -583, 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 Real Estate Appraiser- Supervisor following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: By letter dated June 23, 1999, Kenneth W. Kipp ( "Kipp ") initially sought an advisory from the State Ethics Commission with regard to any restrictions that would be imposed upon him by the Ethics Act as to employment with The Presnell Group ( "Presnell ") following termination of service as a Real Estate Appraiser - Supervisor for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). In response to that request, Kipp, Advice No. 99 -583 was issued on July 19, 1999, which Advice is incorporated herein by reference. As a Presnell employee, Kipp would assist others in performing administrative duties on pre- existing contracts Presnell would have with PennDOT for Right -of -Way Acquisition in Kipp's former District. Presnell forwarded a copy of the Advice to the Contract Management Division of PennDOT requesting that it be allowed to employ Kipp to assist others in performing vital tasks without contacting his former District or forwarding any documents to PennDOT under his signature. Contract Management asked whether Kipp would violate the Ethics Act if Presnell's monthly invoices submitted to PennDOT would include Kipp's name as an employee and request reimbursement for his pay and expenses. non 99 -583C November 2, 1999 Page 2 As Director of Acquisition Services for Presnell, you now seek clarification as to the particular inquiry posed by the Contract Management Division of PennDOT. Discussion: As noted in Kipp, Advice No. 99 -583, in Kipp's former capacity as Real Estate Appraiser- Supervisor for PennDOT, he 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. Thus, upon termination of public service with PennDOT, Kipp became a "former public employee" subject to the restrictions of Section 1103(9) of the Ethics Act. The restrictions of Section 1103(g) are accurately set forth in the Advice of Counsel. The only question that is to be addressed in this clarification of Advice is whether Kipp would transgress Section 1 103(g) of the Act if the monthly invoices submitted by Presnell to PennDOT would include his name and request reimbursement for his pay and expenses. The issue you now raise was generally addressed by the Commission in Shay, Opinion 91 -012 wherein a former PennDOT employee who accepted employment with a private company argued that the inclusion of his name on invoices submitted by his former governmental body would not constitute representation since the definition of "represent" only enumerates lobbying and submitting bid or contact proposals. The Commission first recognized that the Legislative intent in promulgating Section 3(g) of the Ethics Law was to protect the public trust, such that a public official /employee must act consistently with the public trust and upon leaving public service, may not utilize his association with the public sector, officials or employees to secure treatment or benefits for himself or his new employer that may only be obtainable because of his association with his former governmental body. The Commission then quoted the definitions of "represent" and "person," and stated that the new employer would clearly be within the definition of "person" as a business /firm and corporation. The Commission further noted that the submission of invoices containing the former public employee's name would fall within the definition of "represent" which encompasses "any activity." Based on this interpretation, the Commission concluded that the proposed inclusion of the former public employee's name on invoices submitted by the new employer to PennDOT would be prohibited by Section 3(g) of the Ethics Law. The Commission modified its decision in Shay when it issued Abrams/Webster, Opinion 95-011. Abrams/Webster involved an appeal filed by a former PennDOT civil engineer whose work was confined to District 3 -0. In that Opinion, the Commission held that in the event of work performed on a pre- existing contract and not involving District 3 -0, the name of the former PennDOT civil engineer may appear on routine invoices if required by the regulations of the agency to which the billing is submitted. Applying Shay to the instant matter, the specific prohibitions of Section 1103(g) of the Ethics Act would preclude the inclusion of Kipp's name on invoices submitted to PennDOT for reimbursement of his pay and expenses. The inclusion of Kipp's name on invoices submitted by Presnell to PennDOT would be with his knowledge and consent and would constitute action on behalf of Presnell. It is also conceivable that if an invoice were challenged, Kipp would have to become a participant in the resolution of the dispute by explaining or testifying on behalf of Presnell as to the manner in which he completed the services on a contested invoice. Such activity, according to Shay, would also constitute prohibited representation. In your request, you state that as a Presnell employee, Kipp would assist others in performing administrative duties on pre- existing contracts with PennDOT for right- Kim) 99 -583C November 2, 1999 Page 3 of -way projects in his former District, District 5 -0. Under these circumstances, based upon Abrams/Webster, Kipp's name may not appear on invoices pertaining to such pre- existing contracts. On the other hand, if Kipp would perform work on contracts Presnell already had with PennDOT and not involving District 5 -0, his name may appear on routine invoices if required by the regulations of PennDOT. 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. Conclusion: In the former capacity as a Real Estate Appraiser Supervisor for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), Kipp 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, Kipp became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety. Section 1103(g) of the Ethics Act would preclude the inclusion of Kipp's name on invoices submitted on Presnell's behalf to PennDOT for the reimbursement of Kipp's pay and expenses. However, if Kipp would perform work on pre- existing contracts and not involving District 5 -0, his name may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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 1. 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. rely, incent .)sl Chief Counsel