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HomeMy WebLinkAbout22-549 DegerPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Molly Deger, P.E. Dear Ms. Deger: 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 November 4, 2022 22-549 This responds to your letter dated November 1, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et SeMc ., would impose any prohibitions or restrictions upon you with regard to post -public employment following your service as District Engineer with the Chester County Conservation District ("CCCD"). Brief Answer: YES. Although Section 1103(g) of the Ethics Act would not prohibit you from accepting employment following your public service, during the first year following termination of your employment with CCCD, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" before CCCD. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. Defier, 22-549 November 4, 2022 Page 2 You are currently employed as a District Engineer with the County of Chester at CCCD. You have submitted a copy of your official CCCD position description, which document is incorporated herein by reference. A copy of the CCCD organizational chart was submitted and is also incorporated herein by reference. You are considering pursuing employment with Jacobs Engineering Group, Inc. ("Jacobs"), whose legal counsel has requested a letter from the Ethics Commission outlining any post -employment restrictions you may have as a result of your employment with CCCD. You advise that you are not aware of any contracts that CCCD holds with Jacobs, do not recall working on any projects with Jacobs, and have not reviewed any NPDES construction stormwater permit applications involving Jacobs' designs. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you following termination of your employment with CCCD. In particular, you pose the following question: (1) Whether you would be permitted to take a position with Jacobs, and if so, whether there would be restrictions on the type of work you can perform as it relates to CCCD. 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. As a District Engineer with CCCD, you would be considered a "public employee" subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa. C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the position 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 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 CCCD, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act provides: § 1103. Restricted activities Defier, 22-549 November 4, 2022 Page 3 (g) Former official or employee. No former public official or public employee shall represent a Verso n, 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 following terms related to Section 1103(g) are 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 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; 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, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the DeRer, 22-549 November 4, 2022 Page 4 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 the 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; Sharp, Opinion 90-009-R. The governmental body with which you would be deemed to have been associated upon termination of your employment with CCCD would be the CCCD in its entirety. Therefore, for the first year following termination of your employment with CCCD, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" — including but not limited to yourself or a new employer such as a consultant or engineer — before the CCCD. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiry shall be addressed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with Jacobs or any other private business, consulting or engineering firm, governmental body, etc., however, during the first year following termination of your employment with CCCD, Section 1103(g) of the Ethics Act would prohibit you from providing services to CCCD as such would necessarily involve prohibited representation before CCCD. 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 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. Deger, 22-549 November 4, 2022 Page 5 Conclusion: As a District Engineer with CCCD, you would be considered a "public employee" subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa. C.S. § 1102; 51 Pa. Code § 11.1. Upon termination of your employment with CCCD, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the CCCD in its entirety. For the first year following termination of your employment with CCCD, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before CCCD. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with Jacobs or any other private business, consulting or engineering firm or governmental body, etc., however, during the first year following termination of your employment with CCCD, Section 1103(g) of the Ethics Act would prohibit you from providing services to CCCD as such would necessarily involve prohibited representation before CCCD. 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. Respectfully, Bridget K. Guilfoyle Chief Counsel