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HomeMy WebLinkAbout99-642 StrouseSteven E. Grubb Goldberg, Katzman & Shipman, P.C. 320 Market St Strawberry Square P.O. Box 1268 Harrisburg, PA 1 71 08 -1 268 Dear Mr. Grubb: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 22, 1999 Re: Former Public Employee; Section 1103(g); Manager of the Engineering and Safety Division; Bureau of Aviation; PennDOT. This responds to your letter of November 19, 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 et seq., presents any restrictions upon employment of a Manager of the Engineering and Safety Division following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You are the attorney for Fran Strouse ( "Strouse "), a former employee of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Aviation ("PennDOT"). While at PennDOT, Strouse served as the Manager of the Engineering and Safety Division. In that capacity, he was responsible for various tasks, including supervising four engineers and one supervising engineer in the course of project management for airport development after the Commonwealth granted funds for a particular airport project. Strouse's supervisory responsibilities included quality assurance and technical compliance with the approved plans and specifications. He also supervised five safety specialists and one supervising specialist who assured that airports were in compliance with Commonwealth licensing regulations. Strouse retired on. June 25, 1999 and was immediately employed as a Project Manager for Delta Airport Consultants ( "Delta "). In his new position, Strouse acts as a consultant to various airport owners in the Commonwealth. He generally participates in the planning, design and construction administration of various airport projects. You have submitted a copy of Strouse's job description and organizational chart for his position as Project Manager for Delta, which is incorporated herein by reference. You specifically point out that Strouse's job description indicates that his primary responsibility is to his client, the airport owner. You state that all of his actions are directed at providing services to the client in completing an airport project in a timely and cost efficient manner. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.oa.us 99 -642 Grubb 99 -642 December 22, 1999 Page 2 As Project Manager for Delta, Strouse plays an active role in the day -to -day operations of several airport projects in the Commonwealth and comes into contact with PennDOT when PennDOT representatives are involved in project planning meetings, design meetings and construction reviews, over which he generally presides. Contact with PennDOT representatives is in a constructive work setting where all members at the meetings, including the PennDOT representatives, are working toward the goal of completing a project. Strouse applies his 26 years of technical experience to assist the airport owners in a broad range of technical areas, such as: 1) Complying with State and FAA airport guidelines and programs; 2) Enhancing communication between the airport owner and contractors, tenants, etc.; 3) Using technical expertise to create bid specifications and plans; 4) Advertising, answering contractor questions, monitoring bid openings and negotiations; 5) Reviewing, monitoring and inspecting the construction project to assure timely and cost - efficient results; and 6) Approving change orders, where necessary. You state that the above list is not exhaustive, but highlights the general nature of his job, that being the provision of technical assistance in an engineering field where the typical ariport owner does not have the necessary expertise. You point out that Strouse's job description does not require him to "represent" the client in front of PennDOT. You also note that neither Strouse nor Delta requests funding from PennDOT. You add that Delta neither requests approvals from PennDOT nor acts in any way as an agent, counsel or lobbyist for the client. The standard contractual relationship between Delta and their airport owner clients specifically excludes an agency relationship. Referring to the organizational chart, you state that Strouse works for the airport owner, not on behalf of the airport owner. The airport owner retains all responsibilities for funding and approvals which typically involve PennDOT. Strouse understands that he is prohibited from acting on Delta's behalf in any adversarial proceeding which is presented for dispute resolution to PennDOT. He also understands that he may not, on his client's behalf, request approval from PennDOT, or attempt to persuade PennDOT to side with the airport owner on certain matters. You state that neither of these responsibilities have ever been part of Strouse's job description. You refer to Hostetter, Advice No. 97 -550 and state that while Hostetter is factually similar to the instant matter, Strouse seeks a separate advice because Hostetter did not directly address the specific issues you now pose. You state that Strouse only seeks to work on projects and attend meetings where PennDOT personnel are present. In order to perform his duties with Delta, he needs to keep apprised of a project's progress by attending and participating in these meetings. Strouse also wishes to preside over certain meetings since much of the technicalities of an airport project require his expertise. You state that he does not wish to influence PennDOT, either directly or indirectly. You do not interpret Section 1 103(g) of the Ethics Act as prohibiting the type of conduct described above. Rather, you interpret Section 1103(g) as prohibiting Strouse from representing the airport before PennDOT. You state that you are fully cognizant that Strouse could not present a request made by an airport owner to PennDOT for decision. You state that he wishes to work on projects where PennDOT is involved as an owner in a project's completion. You ask for an advisory on behalf of Strouse as to the following activities: Grubb, 99 -642 December 22, 1999 Page 3 1. Participating in and presiding over airport project meetings where PennDOT representatives are in attendance, including common project conferences, bid openings, pre -bid meetings, pre- construction meetings, design meetings, etc.; 2. Participating in airport project construction observations where PennDOT personnel may be in attendance; and 3. Communicating information to PennDOT personnel involving technical issues, change orders, design modifications, bids, specifications, contracts, engineering matters, etc. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. 5§1107(10), (1 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 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 the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. In the former capacity as Manager of the Engineering and Safety Division of the Bureau of Aviation for the Commonwealth of Pennsylvania, Department of Transportation ("PennDOT"), Strouse 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 § 1 1 .1 . This conclusion is based upon the facts which you have submitted, which clearly indicate 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, Strouse became 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 ": 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 Grubb 99 -642 December 22, 1999 Page 4 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: 65 Pa.C.S. §1102. 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 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 gag, 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. Grubb 99 -642 December 22, 1999 Page 5 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 1 103(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 Strouse has been associated upon termination of public service is PennDOT in its entirety, including but not limited to the Bureau of Aviation. Therefore, for the first year after termination of Strouse's service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before PennDOT. Having set forth the above principals, your specific inquiries shall now be addressed. As for your first inquiry, you are advised that Section 1103(g) of the Ethics Act would prohibit Strouse from participating in or presiding over airport project meetings where PennDOT representatives would be in attendance, during the first year following termination of his service with PennDOT for the reasons set forth above. It is irrelevant that Strouse's primary responsibility is to his client, the airport owner, and not to Delta since both of these entities fall within the broad statutory definition of "person" and Section 1103(g) restricts "representation" of "persons" before the governmental body with which the former public official /employee is associated. Further, your contention that because Strouse works for the airport owner, rather than on behalf of the airport owner, he does not "represent" his client in front of PennDOT is illusory. Based on the submitted facts, it is clear that the purpose of PennDOT's presence at such meetings is to ensure that the airport owner complies with the approved plans, specifications and regulations. It is also clear that the purpose of Strouse's presence is to assist the airport owner in complying with such plans, specifications and regulations. In so doing, Strouse would be "representing" the airport owner, with promised or actual compensation, before PennDOT, which conduct would transgress Section 1103(g) of the Ethics Act. The above conclusion is in conformity with prior Commission Opinions. See, Stanisic Opinion No. 98 -004 where a former PennDOT transportation construction inspector who later became employed as a construction inspector for a private engineering firm argued that, in performing inspections on PennDOT projects according to PennDOT specifications, he would be representing the best interests of PennDOT. The Commission disagreed, stating: C,rubb 99 -642 December 22, 1999 Page 6 We similarly conclude, as did the Advice of Counsel, that during the first year following termination of your employment with PennDOT, it would be impossible as a practical matter for you to perform the functions of a Construction Inspector working for a consulting firm on PennDOT project(s) without transgressing Section 3(g). In performing inspections of such project(s). you would be acting on behalf of your new employer and would necessarily engage in prohibited representation before your former governmental body, PennDOT. See, Long, Opinion No. 97 -010. W, at 5 (Emphasis added). Although the facts in Stanisic are dissimilar to those which you have submitted, the same principal would still apply. As stated above, by participating in or presiding over airport project meetings in the presence of PennDOT personnel, Strouse would be representing his new employer, the airport owner, before PennDOT, which conduct would transgress Section 1103(g) of the Ethics Act. As for your second inquiry, you do not explain or describe the extent or nature of Strouse's participation in such "airport construction observations" where PennDOT personnel may be in attendance. However, to the extent that his participation would involve prohibited "representation" as set forth above, such conduct would transgress Section 1103(g) of the Ethics Act. As for your third inquiry, Strouse would be prohibited from communicating information to PennDOT personnel involving technical issues, change orders, design modifications, bids, specifications, contracts, engineering matters, etc. where written materials containing his name would be submitted to PennDOT or where his identity in undertaking such activities on behalf of his client would otherwise be revealed to PennDOT. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(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. Conclusion: In the former capacity as Manager of the Engineering and Safety Division of the Bureau of Aviation for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), Strouse would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et sea. ( "Ethics Act "). Upon termination of service with PennDOT, Strouse became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety. The restrictions as to representation Grubb 99 -642 December 22, 1999 Page 7 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 1 107(1 1), 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. cerely, v-t)./1/4/ 14( Vincent J. Dopko Chief Counsel