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Home My WebLink About92-536STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 13, 1992 Mr. Thomas E. Farabaugh 92 -536 R.D. #7, Box 109 Punxsutawney, PA 15767 Re: Former. Public Employee; Section 3(g); Right -of -Way Administrator II; PennDOT. Dear Mr. Farabaugh: This responds to your letter of December 31, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Right -of -Way Administrator II following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: As a Right -of -Way Administrator II for the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) in District 10 -0 in Indiana, Pennsylvania, you seek the advice of the State Ethics Commission regarding the application of the Ethics Law to your proposed employment following your retirement from PennDOT on January 17, 1992. Upon ;retiring, you plan.to work for Edward C. Griffith Quarry, Inc. (Griffith). You state that your duties with PennDOT for the past 23 years have consisted of supervising the acquisition of property for highway construction and improvement projects, bridge projects, controlling advertising and junkyards along the interstate and primary highways, relocation and adjustment of utility facilities to accommodate construction and development of right -of -way acquisition plans. Your current staff consists of 8 people. You note that at times you deal with township or county officials on local bridge projects performing or monitoring right - of-way acquisition. However, you state that your subordinates are the contaEt persons. /f construction or maintenance; becomes involved With property owner problems or complaints, you acknowlede�e that it may be necessary for right -of way personnel to become involved!. Mr. Thomas E. Farabaugh February 13, 1992 Page 2 Griffith is . a relatively new company having obtained some state approvals on aggregate, and it will! be seeking additional approvals in the near future. Your; dutiestwith Griffith would be as an aggregate salesman, involving contacts with contractors of all types, as well as with municipalities and individuals. Additionally, your prospective employment would involve assisting in bid preparation for state and municipality contracts, You note that you have never worked in the materials unit nor have you worked in the maintenance or municipal services units in matters involving contracts for purchases of aggregate. Based upon all of the above, you seek an expedited advisory so that you may provide adequate notice to your supervisor. Copies of your job description, job classification specific- ations and organizational chart have been obtained from PennDOT, all of which documents are incorporated. herein by reference. It >_ is noted that the 'incorporated documents indicate your class title as. a Right -of -Way Administrator II; in PennDOT's Bureau of Design, Right -of -Way and Utilities Division. Discussion: As aRightf -Way Administrator II for PennDOT, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this' Commission. 65 P,S. Section 402; 51 Pa. Code Section 11. This conclusion is based upon the 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 contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is, greater . than de mini.mis on the interests of another person. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) 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. 1 Mr. Thomas E. Farabaugh February 13, 1992 Page 3 Initially, to answer your request the governmental body.with which you have been associated while working with PennDOT must be identified. Then, the scope of the prohibitions .. associated with the concept and term of "representation" nest be reviewed. The term "governmental body with which a public official or public employe* is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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. In-applying the above definition to the instant matter, we must conclude that the governmental body with which you have been associated upon termination of public service would be PennDOT in its entirety, including but not limited. to District 10 -0, the 'Right -of -Way and Utilities Division, and Bureau of .Design. The above is based upon the language of the Ethics Law, the legisla- tive intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, 'in Sirolli, Opinion 90 -0 06, the Commission found that a former Division Director of the Department. of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90-009 - R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with PennDOT, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis—a -vis PnnDOT . It is noted that Act 9 Of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is dr has been associated." It was the specific intent of the General Assembly to define the above term so that it vas not merely limited to the area where a public official/employee had influence or control but extended to the Mr. Thomas E. Farabaugh February 13, 1992 Page 4 entire governmental body with'which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular sub- division of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law •must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, It is clear that the governmental body with which you have been associated is PennDOT in its entirety, including but not limited to District 10-0, the Right -of -Way and Utilities Division, and the Bureau of Design. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the'ormer governmental body. Likewise, there is no general limitation on the type of employment in which•a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concernedwith financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees`to secure for himself or a new employer, treatment or benefits that may be obtainable only, because of his association with his former governmental body. In respect to the one year restriction against such "representation," the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." 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. Mr. Thomas E. Farabaugh February 13, 1992 Page 5 Section 2. Definitions. In addition, the. term "Person" is defined as follows under the Ethics Law: "Person." A business, ;governmental bqd;,` individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The - Commission, in P000vich, - Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, but not limited to, negotiations or renegotiations,in general or as to contracts; 2. Attempts to influence; 3. , Submission of bid or contract '. proposals which are signed or contain the name of the former public official /employ- ee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing:: the interests of any person or employer before the former governmental body in _relation, to legislation, regulations, etc. The Commission has also h /d that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former .governmental body. In Shav, Opinion 91 -012, the Commission held that Section 3(g) would prohibit 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 pertained to 'a c`ontra'ct "which existed prior to termina- tion of public service. Therefore, within the first year after termination of service:, you should not engage in the type of activity outlined above. You may assist -in the preparation of any documents presented to PennDOT so long as you are not ; identifi:ed as ; the prepare.-. You may also counsel any "person regarding -that person'"s ap- pearance before PennDOT-. Once again, however, the activity in this respect should not be revealed to PennDOT-. Of cbur e, any hr. Thomas E. Farabaugh • bruary 13, 1992 Page 6 Len under the Ethics Law would not prohibit or preclude the making of general informational inquiries of_ PennDOT to secure f ormation which is available to the general public. This must amt 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. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 aete, official action, or judgement 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 mill 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 Law; 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 mot involve an interpretation of the Ethics Law. Specifically scat addressed herein is the applicability of the Governor's Code of Conduct. Cbnclusion: As a Right -of -Way Administrator II for the Common - sealth of Pennsylvania, Department of Transportation ( PennDOT), pm are to be considered a "public employee" as defined in the lthics Law. Upon termination of service with PennDOT, you would become a "former public employee subject to Section 3(g) of the hies Law. The former governmental body is PennDOT in its entirety, including but not limited to District 10 -0, the Right - ad -Way and Utilities Division, and the Bureau of Design. The restrictions as to representation outlined above must be #allowed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), this Advice is a complete defense is any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing 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. Mr. Thomas E. Farabaugh February 13, 1992 Page T Finally, if you disagree with this'Adyice or if you have any reason to challenge same, you may'requestIthat the full Commis- sion review this Advice. A personal appearance before the 'tommission will be scheduled and a formal Opinion frbia the Commission will be issued. Any such appeal must be in writing and must be received at the Commissibn within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. • Sincerely, Vincent i Dop o Chief Counsel