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HomeMy WebLinkAbout93-529 SchillingSTATE ETHICS COMMISSION -309 FINANCE. BUILbING PQ. SOX 11-470 - HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUN March-22, . 1993 Raymond R. Schilling 93-529 Box 228, R.D. #2 Ebensburg, PA 1593L Re: Former Public Employee; Section 3(g); Senior Civil Engineer Supervisor, District Environmental Manager, Civil Engineer III; Bureau of Design; PennDOT. Dear Mr. Schilling: This responds to your letter of February 19, 1993, 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 Senior Civil Engineer Supervisor with a working title of District Environmental Manager classified as a Civil Engineer III, following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: You request an advisory from the State Ethics Commission as to new employment with an entity outside of the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). You state that you are currently employed by PennDOT in Engineering District 10 -0 as a Senior Civil Engineer Supervisor with a working title of District Environmental Manager. You have submitted a copy of your job description, which document is incorporated herein by reference. The said job description indicates your classification as a Civil Engineer III. You state that your position with District 10 -0 does not give you the power to take or recommend official action of a non - ministerial nature with respect to contracting, inspecting, administering or monitoring grants, leasing, regulating auditing or selection of consultants. You do review documents, contracts and letters of interest from consultants as a technical expert. However, due to the fact that you have a family member that works for a consulting firm, you do not influence consultant selection on PennDOT contracts. Raymond K. Sc hilling March 22, 1993 Page 2 You are contemplating laying PennDOT to work in the private sector tor a consulting firm as an Assistant Department Head for Highway Design Services, our duties will include managing existing contracts dealing with preliminary engineering and final design. The consulting firm has existing contracts with PennDOT, other state departments of transportation, and private clients. You specifically ask what restrictions pertain to negotiating or renegotiating a contract, preparation of letters of interest or contract documents, and administration of existing contracts. You state your understanding that Quinn, Advice 89 --594, concluded that "the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law." Based upon all of the above, you request an advisory from the State 'Ethics Commission. Discussion: As a Senior Civil Engineer Supervisor with a working title of .District Environmental Manager classified as a Civil Engineer III for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are 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 §1.1. 'This conclusion is based upon the job description. Despite your claim that you do not have the power to take or recommend official action of a non - ministerial nature with respect to contracting, inspecting, administering or monitoring grants, leasing, regulating, auditing or selection of consultants, when reviewed on an objective basis, the job description indicates clearly that you engage in activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you would become 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 are associated while working with PennDOT must be Raymond K. Schilling March 22, 1993 Page 3 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 you will have been associated upon termination of public-service will be PennDOT in,its entirety, - including but not - limited to Engineering District 10 -0 and the ,Bureau of Design. The above is based upon the language of the Ethics Law, the legislative intent (eaislative Journal of House, 1989 'session, No. 15 at 290, 291) and the prior precedent, this Commission. Thus, in Siroli, 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 10 -0 and the Bureau of Design. 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 Raymond K. Schilling March 22, 1993 Page 4 debate relative to the amendatory language for the above term: We sought to make particularly clear that when, we are prolUbiting 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. §1901, it is clear that the governmental body with which you are associated is PennDOT in its entirety, including but not limited to Engineering District 10 -0 and the Bureau of Design. 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: 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 br 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.- Raymond K. Schilling March 22, 1993 Page 5 "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 a,Iso 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 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 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 ,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 of - fort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Raymond K. Schilling March 22, 1993 Page 6 As for your specific inquiry regarding . the administration of existing contracts, and your reference to Quinn, Advice 89 -594, any reliance upon that Advice would be misplaced. In Shay, Opinion 91- 012, decided by the full Commission, the facts submitted by Shay, a former PennDOT employee, included an existing contract, yet -the restrictions of Section 3(g) nevertheless applied. 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 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. 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 Senior Civil Engineer Supervisor with a working . title of District Environmental Manager classified as a Civil Engineer III for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are considered. a "public employee" as defined in the Ethics Law. Upon 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 is PennDOT in its entirety, including but not limited to Engineering District 10 -0 and the Bureau of Design. 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 a public reCbrd and will be made available as such. Raymond K. Schilling March 22, 1993 Page 7 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full CommissiQn 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. Sincerely,. rmitei 144 Vincent J. Dopko Chief Counsel