HomeMy WebLinkAbout92-622Dear Mr. Whiteside:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 1 1470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 21, 1992
Mr. Charles J. Whiteside 92 -622
439 Wyndom Terrace
Holmes, PA 19043
Re: Former Public Employee; Section 3(g); Assistant Construction
Engineer, Transportation Construction Manager 3, PennDOT.
This responds to your letter of July 20, 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 an Assistant
Construction Engineer classified as a Transportation Construction
Manager 3 following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation.
Facts: As an Assistant Construction Engineer with the class title
of Transportation Construction Manager 3 for the Commonwealth of
Pennsylvania, Department of Transportation (PennDOT), you request
an advisory from the State Ethics Commission. You state that you
are headquartered at PennDOT's Engineering District 6 -0 in Saint
Davids, Pennsylvania. You do not have a college degree.
Having been employed by PennDOT since November of 1961, you
have held the following job titles: Engineering Assistant,
Construction Inspector I, Construction Inspector II, Construction
Inspector Supervisor, Transportation Construction Manager I,
Transportation Construction Manager II, and Transportation
Construction Manager III. You have submitted copies of your job
description and job classification specifications for your current
position.
You are considering taking advantage of the current early
retirement opportunity available to those with thirty years of
Department service. You are seeking an advisory as to the type of
future employment you may-pursue. You state that you would like to
offer your services to either a consultant inspection firm or a
municipality on a Federal - Aid - Municipal (FAM) project as a project
engineer. These jobs are generally fijiancecd with federal and local
Mr. Charles J. Whiteside
August 21, 1992
Page 2
funds and are overseen fox compliance by PennDOT's Assistant
Construction Engineer. You state that there is a critical need for
project engineers on these contracts who have knowledge of the
Department's documentation procedures, and you feel that you can
provide a valuable service to the local communities. You state
your belief that there would be no conflict of .Interest concerning
your employment in this manner. You note that you have made no
commitment to leave state service as of your inquiry, but that you
are considering the early retirement option. You request an
advisory as to your prospective conduct so that you may decide on
your course of action.
Discussion: As an Assistant Construction Engineer with a class
title of Transportation Construction Manager 3 for the Commonwealth
of Pennsylvania Department of Transportation :( "PennDOT "), you are
to be considered a "public employee" within the definition of that
team as set forth in the Public Official and Employee Ethics Law
and the Regulations of this ;Commission 65 P.S. S402; 51 Pa. Code
§1.1.. 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 atwnitoring 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, you would
became a "former public employee" subject to Section 3(g) of the
Public Official and Employee Ethics ; Law. Section 3<q) of the
Ethics Act provides that:
jecto ,3 . Restricted activities.
(g) No . former public . official or public
employee shall represent a person, with
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. , the scope of the prohibitions associated with
the concept nd 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:
ggction 2. Definitions.
Mr. Charles J. Whiteside
August 21, 1992
Page 3
"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 Engineering District 6-
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 Sirolli1 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- G09 -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
-PeunDOT in its entirety, including but not limited to Engineering
District 6 -0.
It is noted that Act 9- of. ::1 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
goveriunental 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 Houser, 1989
Session, No. 15 at 290, 291.
Mr. Charles. 0. Whiteside
August 21, 19 92
Page 4
Z'hereTOre, since the Ethics `Law must be construed to ascertain
and effectuate the intent of the General Assembly. -under 1 Pa.
,C.p.A. S19 .p1, it,is clear that the governmental body with which you
have been is PennDOT in its entirety, including but not
limited ted to Engineering District 6-0.
` j
Turning now to the spope of the restrictions under Section
1(g), t'he Ethics, Law . does . iiot affect one's ability to appear before
gencies or entities other than with respect to the former
4oVernttiental bo, r. Likewise,. . there is no general limitation on the
type Of, . employment in which. a person._ may engage, following
cpartuie Xrom their governmental body. ,..xt is noted, however, that
the coif lists of interest law 3.'s primarily concerned with financial
conf] tqt , And violations of the public trust. The intent of the
law t g ,11,0 ally is that during.,,. the term of a, person's public
ern ." ei t..he must act,.,co isistently. with the public trust and upon
4e artur& .from the public sector, that individual should not be
aaowed tip utilize his 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:
Sectirfn 2: Definitions
"Represent " To ..act on behalf . any
Other . person in any activity Which _•includes,
iut -
is not limited to, ,, the fob Iowa, i q
pertonal, appearance$, _ negotiatdons,,. lobbying
and submitting _bic3 _Pr contract, 4croposale wch
40 - O'igned by - ®r,contain. the name, a former
public official . or public employee:
ofi
n a dd i tion; the terin "Person" is d
ned:. as fo llows under the
Ethics Law:
S ,Lion. 2 flef•initic ns .
..!!Person." , .. basine �verri ep�ta bod
.corporation, _union, association,
aa,,etnershiti committee, club or other.
organization or group of persons. <A
The Commis s i i:M (dpi -t s 0
�,,, � _; • sent nion 89 0 as a3
'' " a.t on" as used in Sec ion 3 (g) of
interpreted t�e,. tee -., epz'�
the Ethics Law to prohibit:
1. Personal appearances before the former governmental body
Mr. Charles J. Whiteside
August 21, 1992
Page 5
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
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;
5. Lobbying, that is representing the interests of any
person or employer 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 if submitted to or reviewed. - by the former
governmental body constitutes an attempt to influence the fdt^mer
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 :th*. type of
activity outlined above.
You may assist in the preparation of any documente< - aresed
to PennDOT. However, you may not be identified ors -, cements
submitted to PennDOT. You may also counsel any person regarding
that person's appearance before PennDOT. Once againt,hbwever, 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 inquiriess,of PennDOT to secure
information which is available to the general putlilit. This must
not be done in an effort to indirectly influence the former
governmental body or to otherwise make knows to that ,body the
representation of, or work for the new. employer. , t `
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 understanding that the vote, official
action, or judgement of the public official /employee would be
influenced thereby. Reference is made to these prbvisions of the
law not to imply -that there has been or will be any transgression
thereof but merely to provide a complete response tb the question
presented.
Mr. Charles J. Whiteside
August 21, 1982
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 to interpretation of the Ethics Law. Specifically not
addressed herein is the applicability of the Governor's Code of
Conduct.
Conclusion: As an Assistant Construction Engineer with the class
title of Transportation Cdtstruction Manager 3 for the Commonwealth
of Pennsylvania, Department of Transportation ( "PennDOT ") , you are
to be considered a "public employee " as defined in the Ethics Law.
Upet termination Of service with PennDOT, you would become a
"former public employee" subject to Section 3(g) of the Ethics
Law. The former governmental body would be PennDOT in its
entirety, .including but not limited to Engineering District 6 -0.
The re striCtions as to "representation outlined above must be
follow. 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 Stittement df - Financial Interests be
filed for the year following termination of service.
Pursuant to Section 7(11), this Advice is a complete defense
in any enforcemtte it proceeding initiated by the Commission, and
evidence of good faith conduct in any other civil or criminal
proceeding, providing the reguestor has disclosed truthfully all
the material facts and committed the acts complained of in reliance
on the Advice given.
This letter is a public retard and=will be made available as
such.
Pitally, if you disagree with this Advice 'or if you have any
reason to challenge same, you may request that the full Commission
re View this Advice. A personal appearance before the Commission
will be sehedulad and a formal Opinion from the Commission will be
is used. Any such appeal must be in writing and must be received at
the Com.ssi~on within 15 days of the date of this Advice -pursuant
to 51 P. Code 52.12.
ncerely,
Vincent J. Dopko
Chief Counsel