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HomeMy WebLinkAbout92-559Fred C. Jug, Jr., Esquire Brandt, Milnes, Rea & Wise 4990 USX Tower Pittsburgh, PA 15219 -2702 Dear Mr. Jug: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 20, 1992 92 -559 Re: Former Public Employee; Section 3(g); Labor and Contract Compliance Agent; PennDOT. This responds to your letter of February 14, 1992, 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 labor and contract compliance agent following termination of service with PennDOT. Facts: As legal counsel for Ms. AnnaRosa LaManna and Boss Construction, Inc., you request an advisory from this Commission. Ms. LaManna is President of Boss Construction, Inc., and your clients have recently been certified by the City of Pittsburgh and County of Allegheny as a WBE. Your client has submitted to PennDOT an affidavit for certification as a Disadvantaged Business Enterprise (DBE) with the Commonwealth of Pennsylvania, Department of Transportatin. Ms. Sharon A. Lenart, DBE Administrative Officer for the Office of Inspector General, has suggested that your client seek written guidance from this Commission regarding the affidavit for certification. You have submitted a copy of Ms. Lenart's letter directed to Ms. LaManna dated February 11, 1992, which letter is incorporated herein by reference. Ms. LaManna was previously an employee of PennDOT. Ms. LaManna's employment with PennDOT ended amicably on September 27, 1991. You specifically seek advice as to any potential conflict of interest for Ms. LaManna since she desires to work as a :subcontractor on PennDOT issued contracts. You state that it is important to note that as a'DBE, your client would have no direct "it with PennDOT as she would not be engaged as a prime 'contractor but only as a subcontractor. Furthermore, you note-that Ms.-IAMAnna was formally an employee of District 11 _ and is seeking Fred C. Jug, Jr. March 20, 1992 Page 2 to perform work in District 12. You finally state that Boss Construction is a partnership, and only one of the three partners previously worked for PennDOT. Based upon all of the above, you request an advisory from this Commission. Subsequent to receiving your request for an advisory, the Commission received a memo dated February 21, 1992, from Ms. Lenart as DBE Administrative Officer for the Office of Inspector General - PennDOT. The said memo indicates that while Boss Construction, Inc., is scheduled to be used as a DBE, pending receipt of such certification, on a PennDOT project in District 12, its application to PennDOT's DBE program indicated a desire to perform work in District 11, among others. The memo clarifies that Boss Construction Inc., is not -a partnership but is a corporation. Attached to the memo are copies of your letter of inquiry to this Commission and the Disadvantaged Business Enterprise Certification Affidavit submitted by Boss Construction, Inc., which affidavit consists of four pages, dated January 22, 1992, and is signed by Ms. LaManna and designates her as the contact person and president. Ms.'Lenart's said memo of February 21, 1992, and its attachments are incorporated herein by reference. Copies of Ms LaManna's job description, job classification specifications, and organizational chart have been obtained from PennDOT, all of which documents are incorporated herein by reference. Discussion: It is initially noted that your for an advisory may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that 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 Law violations by a person who is subject to the Ethics Law. Thus, while a concern is noted that a Disadvantaged Business Enterprise Certification Affidavit has already been submitted to PennDOT bearing the signature of Ms. LaManna and indicating her as the contact person and president for the corporation, this concern will not be addressed herein as it constitutes past conduct. As a- _ and Contract= Compliance Agent for PennDOT, Ms. Annarosa LaManna would be - considereda "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 PZSf. §402; 51_ Pa. Code S1:1 - . 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 Fred C. Jug, Jr. March 20, 1992 Page 3 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 minimis on the interests of another person. Consequently, upon termination of public service, Ms. LaManna became 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. , Initially, to answer your request the governmental body with which Ms. LaManna has been associated while working with PennDOT must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee 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 Ms. LaManna has been associated upon termination of public service would be PennDOT in its entirety, including but not limited to District 11 - . The above is based upon the language of the Ethics Law, the legislative Intent (Legislative Journal of 'Rouse, _1989 Session, No. 15 at 290, Fred C. Jug, Jr. March 20, 1992 Page 4 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found• that a former Division Director of the Department of Public Welfare (PPW) 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 :(g)_ of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis PennDOT. 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 or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the 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 subdivision 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. 51901, it is clear that the governmental body with which Ms. LaManna has been associated is PennDOT in its entirety, including but not limited to District 11. 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 former 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 concerned with 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 Fred C. Jug, Jr. March 20, 1992 Page 5 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 benetLts 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." 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. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, 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, including, 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 /employee; 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. Fred C. Jug, Jr. March 20, 1992 Page 6 The Commission has also held 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 contract which existed prior to termination of public service. Therefore, within the first year after termination of service, Ms. LaManna should not engage in the type of activity outlined above. Ms. LaManna,iiay assist in the preparation of any documents presented to PexunPOT so long as she is not identified on the document. Ms. LaManna may also counsel any person regarding that person's appearance before PennDOT. Once- again, however, the activity in this respect should not be revealed to PennDOT. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of PennDOT to secure information which is available to the general public. 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. The restrictions set forth above would apply to Ms. LaManna individually and would not apply to the corporation itself or to the other shareholders ,,who are not themselves former public officials /employees subject to Section 3(g). Ms. LeManna may not "represent" a person - including but not limited to Boss Construction, Inc. before PennDOT-.during,the one year period of applicability of Section 3(g). 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 not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Labor and Contract Compliance Agent for the Commonwealth of Pennsylvania, Department, of Transportation (PennDOT), Ms. AnnaRosa LaManna would be considered .a "public employee" as defined by the Ethics Law. Upon termination of service with PennDOT, Ms. LaManna would become a "former public - employee" subject to Section 3(g) of the Ethics Law. The former governmental body is PennDOT in its entirety, including but not limited to District 11. The restrictions as to representation Fred C. Jug, Jr. March 20, 1992 Page 7 outlined above must be followed. 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 in 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. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Vincent J. opko Chief Counsel '