HomeMy WebLinkAbout03-513 RyanADVICE OF COUNSEL
February 21, 2003
Michael M. Ryan, P.E.
Deputy Secretary for Highway Administration
Pennsylvania Department of Transportation
400 North Street, Keystone Building
Harrisburg, PA 17105 -3541
03 -513
Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State
Employee; Section 11030); Deputy Secretary for Highway Administration;
Pennsylvania Department of Transportation; Pennsylvania Turnpike
Commission.
Dear Mr. Ryan:
This responds to your faxed letter of November 5, 2002, received on January 22,
2003, by which you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., presents any restrictions upon employment of a Deputy
Secretary for Hi hway Administration following termination of service with the
Pennsylvania Department of Transportation ( "PennDOT ").
Facts: Effective January 31, 2003, you will be retiring from your position of
De Secretary for Highway Administration for PennDOT, having served this
department for nearly 35 years. You have submitted a copy of your job description,
which is incorporated herein by reference.
You state that you are the legally designated alternative for the Secretary of
Transportation in official actions relating to the Pennsylvania Turnpike Commission
( "PTC "). You further state that the enabling legislation for the PTC specifically
designates the "Deputy for Highway Administration" as the individual who can serve as
an alternative for the Secretary and vote on official Turnpike business in the Secretary's
role as a Commissioner. In addition, members of your staff have review responsibility
on highway and bridge design contracts administered by PTC including documents
containing your signature as Deputy Secretary.
Based upon the foregoing facts, you ask for guidance as to the post - employment
restrictions that would apply to you upon termination of Commonwealth service.
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 requestor
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February 21, 2003
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based upon the facts which the requestor has submitted. In issuing the advisory based
upon the facts which the requestor has submitted, the Commission does not engage in
an independent investigation of the facts, nor does it speculate as to facts which have
not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material
facts.
As Deputy Secretary for Highway Administration for the Department of
Transportation ( "PennDOT "), you would be considered a public official /public employee
and an "executive -level State employee" subject to the Ethics Act and the Regulations
of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa.Code § 11.1.
Consequently, upon termination of public service, you became a former public
official /public employee and a former executive -level State employee subject to the
restrictions of Section 1103(g) and Section 11030) of the Ethics Act.
Section 11030) restricts former executive -level State employees as follows:
§ 1103. Restricted activities
(i) Former executive -level employee. - -No former
executive -level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this Commonwealth, provided that the
above prohibition shall be invoked only when the recruitment
or inducement is accomplished by a grant or loan of money
or a promise of a grant or loan of money from the
Commonwealth to the business or corporation recruited or
induced to expand.
65 Pa.C.S. § 11030).
Section 11030) restricts the ability of a former executive -level State employee to
accept employment or otherwise engage in business relationships following termination
of State service, under certain narrow conditions. The restrictions of Section 11030)
apply even where the business relationship is indirect, such as where the business in
question is a client of the new employer, rather than the new employer itself. See,
Confidential Opinion No. 94 -011. However, Section 11030) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for a new employer provided and conditioned upon the
assumptions that you did not actively participate in recruiting the new employer to
Pennsylvania, and that you did not actively participate in recruiting or inducing the new
employer to open or expand a plant, facility, or branch in Pennsylvania, through a grant
or loan of money or a promise of a grant or loan of money from the Commonwealth of
Pennsylvania to the new employer.
Unlike Section 11030), Section 1103(g) does not prohibit a former public
official /public employee from accepting a position of employment. However, 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 ":
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February 21, 2003
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§ 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 employee - himself, Confidential
Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any 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 /employee; (4) participating in any matters before the former
governmental body as to acting on behalf of a person; and (5) lobbying. Popovich,
Opinion 89 -005.
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, 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 though the invoices pertain to a contract that existed prior to
termination of public service, Shay, Opinion 91 -012. However, if such a pre- existing
contract does not involve the unit where the former public employee worked, the name
of the former public employee may appear on routine invoices if required by the
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February 21, 2003
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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 /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 No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination of
public service is PennDOT in its entirety and PTC in its entirety. Therefore, for the first
year after termination of your service with PennDOT, Section 1103(g) of the Ethics Act
would apply and restrict "representation" of "persons" before PennDOT and PTC.
Section 1103(g) of the Ethics Act would not restrict you from representation of persons
before agencies other than PennDOT and PTC, in that such agencies would not
constitute your former governmental body.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Sections 1103(g) and 11030) only. It is expressly assumed that there has
been no use of authority of office for a private pecuniary benefit as prohibited by Section
1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c)
of the Ethics Act 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 judgment 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 Act; 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 Act. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: Upon termination of service as Deputy Secretary for Highway
Administration with the Department of Transportation ortation ( "PennDOT "), you would become
a former public official /public employee and former executive -level State employee
subject to the restrictions of Section 1103(g) and Section 11030) of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Under Section
11030) of the Ethics Act, you would not be prohibited from being employed by, receiving
compensation from, assisting, or acting in a representative capacity for a new employer
based upon the assumptions that you did not actively participate in recruiting the new
employer to Pennsylvania, and that you did not actively participate in recruiting or
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February 21, 2003
Page 5
inducing the new employer to open or expand a plant, facility, or branch in Pennsylvania
through a grant or loan of money or a promise of a grant or loan of money from the
Commonwealth of Pennsylvania. With regard to Section 1103(g), the restrictions as
outlined above must be followed. The former governmental body is PennDOT in its
entirety and the Pennsylvania Turnpike Commission ( "PTC ") in its entirety. The
propriety of the proposed conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after termination of service.
Pursuant to Section 1107(11), 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 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 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.
Sincerely,
Vincent J. Dopko
Chief Counsel