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HomeMy WebLinkAbout92-629Mr. Jerome J. Schwertz Vice President Mackin Engineering Company RIDC Park West 117 Industry Drive Pittsburgh, PA 15275 Dear Mr. Schwertz: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 18, 1992 92 -629 • Re: Former Public Employee; Section 3(g); Senior Civil Engineer Supervisor; PennDOT. This responds to your letter of August 13, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee ' thi.,s ,aw presents any restrictions upon employment of a Senior C.'ril Engineer Supervisor following termination of service with the Commonwealth of Pennsylvania, Department of Transport *tion Facts: As Vice President of Mackin Engineerin company:, you request an advisory from the State Ethics Commissi ii behalf of Ms. Karen Shutty. Ms. Shutty has accepted the position of Chief Highway Engineer of Mackin Engineering Compax 's ar isburq branch office, commencing August 31, 1992. Ms. Shutty is leaving her position with the Commonwealth of Pen>syi'vania, Department of Transportation ( "PennDOT ") as of August jl4, 1g92, - to accept this position with your company. You state that Ms. Shutty' s entire nine ` _ ear~ career with PennDOT has been at the Engineering District - -0 "office which covers the six county area of Bedford Blain_ Cannb ia,, Fulton, Huntingdon and Somerset. As of her re ignation,~ .x butt 's classification was as a Senior Civil Xnigineer`Su,�p . nci- She supervised an in -house highway design'sgpad." Mackin Engineering Company provides Consulting engineering services for PennDOT through various contracts., You state that Ms. Shutty will supervise highway design services performed in Mackin Engineering's Harrisburg office. This office- provides services for PennDOT Engineering Districts 2 -0, 3 -0, 4- 0,'5 -0, 6 -0 and 8-0 You Mr. Jerome J. Schwertz September 18, 1992 Page 2 state that Ms. Shutty will not perform in a marketing or procurement role for the firm, and will not perform any services for Engineering District. 9 -0. as upon all of the above, you request an advisory from the State Ethics Commission. Copies of Ms. Shutty's.job description, job classification specification, and organizational chart for her position with PennDOT have been obtained from PennDOT. These documents are incorporated herein by reference Discussion: As . a Senior Civil. Engineer Supervisor for the Commonwealth of Pennsylvania, Department of Transportation ("PennDOT"), Ms Karen Shutty 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. 5402; 51 Pa. Code 51.1. 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. Consequently, upon termination of public service, Ms. Shutty became a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Law provides that: Section 3. flgst ;icte4 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. Shutty 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: Mr.. Jerome J. Schwertz September 18, 1992 Page 3 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. Shutty has been associated upon termination of public service would be PennDOT in its entirety, including but not limited to Engineering District 9 -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 in its entirety, including but not Limited- to:;Engineering District 9-0. L It is noted that Act 9 of 1989 signiant,9.y :.broadened the definition . of the - term "governmental ' bodlr a public official or public employee is or has'been agioc'iated "y It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the aaea 1 where:z , atrpublic official /employee had influence or control but extended "1gd}'the entire governmental body with which the public official /employee was associated. The 'foregoing: inter t _ is lta ed in the legislative debate relative to the amendatory language for the above :term We sought to make particularly •o -fear 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 goverrunent but the entire Mr. Jerome J. Schwertz September 18, 1992 Page 4 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. $hutty has been associated is PenntOT in its entirety, including but not limited to Engineering District 9 -0. - 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 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: SectLoa ,2 . Def initjans "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 Qf aformer 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 P000vich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of Mr. Jerome J. Schwertz September 18, 1992 Page 5 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 by or contain the name of the former p■iblic 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, Ms. Shutty should not engage in the type of activity outlined. above. Ms. $hutty may assist in the preparation of any documents presented 'to PennDOT. However, Ms. Shutty may not be identified on documents submitted to PennDOT. Ms. Shutty 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. In addition, Sections 3(b) and 3(c) of 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 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 Mr. Jerome J. Schwertz September 18, 1992 Page 6 such. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not t, addressed herein is the applicability of the Governor's Code of Conduct Conclusion: As a Senior, Civil Engineer Supervisor for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), Ms. Karen Shutty would be considered a "public - employee" as defined in the Ethics Law. Upon termination of service with PennDOT, Ms. Shutty 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 Engineering District 9-0. The restrictions at to representation outlined above must .be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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 §2.12. t S ncerely, .Vti.ncent}: Dopko Chief .Counsel