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HomeMy WebLinkAbout92-575Dear Mr. Lighty: STATE ETHICS COMMISSION 304 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 7, 1992 Mr. Dudley P, Lighty, P.L. 92 -575 3301 Silvan Drive Thbtndale , PA 19372 Re: Former Public Employee; Section 3(g); Executive -Level State Employee; Section 3(1); Chief, Contract Management Division, Bureau of Construction and Materials; PennDOT. This responds to your letter of March 26, 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 the Chief of the Cbhtract Management Division, Bureau of Construction and Materials following termination of service with the Commonwealth of Pennsylvania, Department of Transportation: Pacts: Having retired from the Commonwealth of Pennsylvania, Department of Transportation ("PennDOT ") on December 27, 1991, you request an advisory from the State Ethics Commission regarding the propriety of your prospective employment in the private sector under the following circumstances. Your former position with PennDOT was as Chief, Contract Management Division, Bureau of Construction and Materials. You have submitted a copy of the job description for that position, which job description is incorporated herein by reference. A prospective position is that of a construction project manager on a PennDOT project as an employee of a consulting engineering firm. The construction project will not start until after January 1, 1993, but in preparation for consultant management of this project, PennDOT must issue a request for proposals now You state that your duties as Division Chief dealt with construction contractors and overseeing the administration of construction contracts by district personnel. You state that you had no involvement with Bureau of Design's functions of consultant selection and of administering engineering agreements for design and other engineering services. Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 2 Based upon all of the above, you ask whether you may be considered now for a future (early 1993) project manager position with a consulting firm that is responding to a current request for proposals. Discussion: As the Chief of PennDOT's Contract Management Division, Bureau of Construction and Materials, you would 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. S402; 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 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. In addition, you would be an executive - level state employee as that term is defined under the Ethics Law, and hence you would be subject to the requirements of Section 3(i) of the Ethics Law, infra. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a.member of his immediate family or a busineSS with which he or a member of his .immediate family is associated. "Conflict" or "conflict of interest" does not include, an action having a de minimis economic impact or which affects to the same degree a class consisting of .the general public or a subclass consisting of an industry, occupation or other group .which Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 3 includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise'of which is necessary to the performance of duties and responsibilities unique to a particular publid office or position of public employment. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet member *, deputy secretaries, the Governor's 'office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. In addition, Sections and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, 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 will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(i) of the Ethics Law provides: Section 3. Restricted Activities (i) No former executive - level State employee may for a period of two years from the time that he terminates State employment be' employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 4 actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. (finder Section 3(a) of the Ethics Law quoted above, a public official /employee may not use the authority of public office/ employment or confidential information received by holding such a public position for the private pecuniary benefit of himself, a member of his immediate family, business with which he or a member of his immediate family is associated. As quoted above, Section 3(i) sets forth.a specific prohibition that a former executive -level state employee for a period of two years after termination of state employment may not be employed or receive any compensation or act in a representative capacity for a business or corporation that the former executive -level state employee participated in recruiting or inducing. It should be further noted that the above restriction specifically applies to the situation where the recruitment or inducement is accomplished by.a grant or loan o money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to the business or corporation recruited or induced to expand. The intendment of the above provision of the Ethics Law is to prohibit an executive -level state employee from obtaining employment or acting as a - representativefor various businesses or corporations that were recruited or induced to expand. Thus, Section 3(i) of the Ethics Law would restrict employment for a two year period as to any business or corporation if the recruitment or inducement was accomplished by a grant or loan of money or promise of a grant or loan of money from the Commonwealth of Pennsylvania to the business or corporation which was recruited or induced to expand. Section 3(i) of the Ethics Law would not preclude employment or representation of clients unless the above qualifying conditionu of Section 3(i) is applicable. In applying Section 3(a) of the Ethics Law to the proffered facts, Section 3(a) would prohibit you from using the position or emoluments of your public position or confidential information to advance an opportunity of private employment with a consulting engineering firm. Once again, it is not suggested that you have engaged in such conduct and the foregoing is provided to give a complete response tq your inquiry. Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 5 As to Section 3(i) of the Ethics Law, you are . subject to that provision of law . since you; are an executive -level state employee. However, Section 3(i would not restrict you from the position of employment with the consulting - engineering firm provided yon did actively participate in recruiting or inducing said firm to open a new, facility or branch in the Commonwealth or participate in inducing the firm to expand an existing plant or facility that was accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to the firm. The facts do not indicate whether you'actively participated in either recruiting or inducing the consulting . engineering firm to open a new facility or branch or expand through a grant or loan of money from the . Commonwealth. Accordingly, and based upon the assumption that there has been no active participation by you in such recruitment or inducement of the consulting engineering firm to open or expand a.. facility or branch through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania, you would not be prohibited from accepting the position of employment with the consulting engineering firm. Upon termination of public employee" subject and Employee Ethics Law. that: Section 3. Restricted activities. (gy 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 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" 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: public service, you became a "former to Section 3(g) of the Public Official Section 3 of the Ethics Act provides Section 2. Definitions. "hove mental body 71ith whi a public Mr. Dudley P. Lighty, P.E. May 7 1992 Page 6 official or public _employee is or has been associated." The governmental hody within State' government or a political subdivision by which the public official or employee is or has been employed or 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 the Contract Management Division and /or the Bureau of Construction and Materials. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 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 (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 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..." Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 7 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 the Contract Management Division and /or the Bureau of Construction and Materials. Turning now to the scope of the restrictions under Section 3(c), the Ethics Law does not affect one's ab-ility.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 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 alloweda utilize his association with the public sector, officials: or employees to secure for himself or 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." 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. Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 8 The Commission, in Popovich Opinion 89 -005y 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. 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, you should not engage in the type of activity outlined above. You may assist in the preparation of any documents presented to PennDOT. However, you may not be identified on documents submitted to PennDOT. You 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. 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 Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 9 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 the Chief of PennDOT's Contract Management Division, Bureau of Construction and Materials, you-would be considered a "public employee" and an executive -level state employee subject to the provisions of the Ethics Law. Under Section 3(i) of the Ethics Law, you would not be prohibited from accepting a position of employment with a consulting engineering firm based upon the assumption that you did not actively participate in inducing or recruiting said company to open or expand a facility or branch through a grant or loan of money or a promise of "a grant or loan of money from the Commonwealth of Pennsylvania. Upon termination of service with PennDOT, you became 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 Contract Management Division and /or the Bureau of Construction and Materials. The restrictions as to representation 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. 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 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 Mr. Dudley P. Lighty, P.E. May 7, 1992 Page 10 and‘mUst at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, incent . Dopko Chief Counsel •