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HomeMy WebLinkAbout92-585Mr. Boyd M. Reeder P.O. Box 44 Green Park, PA 17031 Dear Mr. Reeder: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 18, 1992 92 -585 Re: Former Public Employee; Section 3(g); Surveyor Technician Supervisor; PennDOT. This responds to your letter of April 15, 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 Surveyor Technician Supervisor following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: As a Surveyor Technician Supervisor in charge of a survey corps in District 8 -0 (Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT ")), you state that you will be retiring from said position on April 24, 1992, and plan to seek employment as a surveyor for a consulting firm. You state that as a Surveyor Technician Supervisor you did not have any authority to make policy or award contracts. You are seeking work as a member of a surveyor corps in private industry where you state that you will not be involved in policy making or contract negotiations. You specifically request a ruling for a waiver on the one year restriction placed on retirees. A copy of your job description for your position as a Surveyor Technician Supervisor has been obtained from PennDOT, which job description is incorporated herein by reference. An organizational chart had also been requested from PennDOT, but per a memorandum dated April 22, 1992, from Mr. David R. Guy, Personnel Manager of PennDOT Engineering District 8 -0, which memorandum is incorporated herein by reference, the Commission has been informed that there is no formal organizational chart for your position. However, the memo states that you report to the District Chief of Surveys who in turn reports to the Design Services Engineer. Design Services reports through the Assistant District Engineer for Design to the District Engineer. Furthermore, Mr. Guy has indicated that the Mr. Boyd M. Reeder May 18, 1992 Page 2 position which you held with PennDOT was chief of party for a field survey corps in which capacity you supervised three to five survey personnel in determining 'property limits, project stake -outs, establishing deed descriptions, and similar duties. Discussion: As a Surveyor Technician Supervisor for PennDOT, 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. §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 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. It is specifically noted that you worked independently in the field during normal survey operations while supervising others. Consequently, upon termination of public service, you 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 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: 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 Mr. Boyd M. Reeder May 18, 1992 Page 3 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 8 -0. 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..." 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. S1901, it is clear that the governmental body with which you have been associated is PennDOT in its entirety, including but not limited to District 8 -0 Mr. Boyd M. Reeder May 18, 1992 Page 4 Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one'e 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 Iconf licts 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, iofficials 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." 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; - Submission of bid or contract proposals which are signed Mr. Boyd M. Reeder May 18, 1992 Page 5 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, thht 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 ths• former governmental body constitutes an attempt to influence the former governmental body. In Shay, 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. Although Section 3(g) would not preclude accepting the proposed private employment as a surveyor for a consulting firm, your conduct during the one year period of applicability-of Section 3(g) must conform to the restrictions set forth above. This Commission does not have the authority to grant waivers from the statutory requirements of Section 3(g) of the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer toga public official /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, offidial action, or judgement of the public official /employee would be influenced thereby...Reference,is made 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. Mr. Boyd M. Reeder May 18, 1992 Page 6 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 Surveyor Technician Supervisor for the .Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT ") , you would be considered a "public employee" as defined in the Ethics Law. 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 District 8 -0. 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 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent`. Dopko Chief Counsel