Loading...
HomeMy WebLinkAbout21-554 MartinPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.Pa.gov ADVICE OF COUNSEL October 14, 2021 To the Requester: Dear Mr. Wayne S. Martin, P.E.: 21-554 This responds to your correspondence received October 6, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issue presented below: Issue: Facts: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you with regard to performing work as a Municipal Engineer following termination of your employment as the City Engineer for the City of Harrisburg? Brief Answer: YES. During the first year following termination of your employment with the City of Harrisburg, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to a new employer before the City. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: You are a Pennsylvania Licensed Professional Engineer. In May of 2014, you were appointed as the City Engineer for the City of Harrisburg, Pennsylvania (City). The statutory duties of the City Engineer set forth in Article XV of the Third Class City Code and City Ordinance Chapter 2-305. You have included a copy of your job description and organizational chart, which are incorporated herein by reference. Martin, 21-554 October 14, 2021 Page 2 The City often contracts with private engineering firms for design, construction, inspection and construction management services. On several occasions, as City Engineer, you have been appointed by the Mayor and/or the Business Administrator as one of three selection committee members, tasked with scoring proposals/letters of interest from various engineering firms in response to the City's engineering bid solicitations. The recommendation of the selection committee is then sent to City Council for consideration and if approved, the City will enter into a professional services contract with the engineering firm. You state that on a less frequent basis, you have made recommendations directly to City Council — absent public advertisement — regarding small/low costs professional services agreements. You state that at no time has there ever been anything of value received by yourself from any of the firms being considered for these contracts. You also state that at no time were you ever promised any future employment based upon the execution of your duties as City Engineer. You state that the scoring of proposals and/or any recommendations to City Council are based upon your honest evaluation of the quality of the proposal submitted and upon pre -established selection criteria. You state that at some point in time you intend to leave public employment and enter into the private sector as a Municipal Engineer. You state that many of the engineering firms where you may apply for employment either had or currently have existing contracts with the City. You are seeking an advisory opinion as to whether or not you are restricted from seeking employment with these firms as well as any other restrictions that may be placed upon you by the Ethics Act. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. In your capacity as the City Engineer for the City of Harrisburg, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon your submitted job/position description, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non -ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of your employment with the City, you will become a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official/public employee from accepting a position of employment, it does restrict the former public official/public employee with regard to "representing" a "person" before "the governmental body with which he has been associated": Martin, 21-554 October 14, 2021 Page 3 § 1103. Restricted activities (g) Former official or employee. --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. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: § 1102. 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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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. 65 Pa.C.S. § 1102. The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in aM activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official/public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89-005; Edlev, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. Martin, 21-554 October 14, 2021 Page 4 Listing one's name as the person who will provide technical assistance on a proposal, document, or bid (if submitted to, or reviewed by, the former governmental body) constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits 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 if the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing contract does not involve the unit where a former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95-011. A former public official/public employee may assist in the preparation of any documents presented to his former governmental body. However, the former public official/public employee may not be identified on documents submitted to the former governmental body. The former public official/public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but 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. Section 1103(g) only restricts the former public official/public employee with regard to representation before his former governmental body. The former public official/public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official/public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official/public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Shart�, Opinion 90-009-R. The governmental body with which you are deemed to have been associated upon termination of your employment with the City is the City of Harrisburg in its entirM. Therefore, for the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to a new employer before the City of Harrisburg. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered. Conclusion: As the City Engineer for the City of Harrisburg, you are a "public employee" subject to the Ethics Act, 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et SeMc . Upon separation from service with the City you will become a "former public employee" subject to 65 Pa.C. S. § 1103 (g). Your former governmental body will be the City of Martin, 21-554 October 14, 2021 Page 5 Harrisburg. For the first year following separation of your employment with the City, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" including but not limited to a new employer before the City. The restrictions as to representation outlined above must be followed. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal.