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HomeMy WebLinkAbout24-510 Lund PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: www.ethics.pa.gov TOLL FREE: 1-800-932-0936 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 26, 2024 To the Requester: Robert L. Lund, Jr. 24-510 Dear Mr. Lund: This responds to your letter dated December 22, 2023, and your email received January 22, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the generalissue presented below: Issue: 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 for your new employer, a national architect/engineering consulting firm, following termination of your employment as a Deputy General Manager (Operations and EM&C) with the Southeastern Pennsylvania Transportation Authority (“SEPTA”). Brief Answer: YES. During the first year following termination of your employment with SEPTA, Section 1103(g) of the Ethics Act would apply and restrict you fromperforming any activities that would involve “representation” of a “person” — including but not limited to the national architect/engineering consulting firm — before your “former governmental body,” SEPTA. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are a registered Professional Engineer. Effective June 30, 2023, you retired from your employment as a Deputy General Manager (Operations and EM&C) with SEPTA. You have submitted a copy of a job description for your former position with SEPTA, which document is incorporated herein by reference. Lund, 24-510 January 26, 2024 Page 2 You are currently employed on a part-time basis with a national architect/engineering consulting firm (“the Firm”). The Firm has architect and engineering contracts with SEPTA to work on various projects and is also pursuing future work with SEPTA. Other clients of the Firm, including PennDOT, have projects that involve meetings with SEPTA for coordination. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing work for the Firm during the first year following termination of your employment with SEPTA. In particular, you ask whether you would be permitted to perform work on any projects that may be associated with SEPTA. 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. During your employment as a Deputy General Manager (Operations and EM&C) with SEPTA, you were considered a “public 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. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power existedto 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 SEPTA, you became 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”: § 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). Lund, 24-510 January 26, 2024 Page 3 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 limitedto, 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 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/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 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. Lund, 24-510 January 26, 2024 Page 4 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 are deemed to have been associated upon termination of your employment with SEPTA is SEPTA in its entirety. Therefore, for the first year following termination of your employment with SEPTA, Section 1103(g) of the Ethics Act would restrict you from engaging in “representation” of a “person” — including but not limited to the Firm — before SEPTA. You are advised that during the first year following termination of your employment with SEPTA, Section 1103(g) of the Ethics Act would prohibit you from performing work for the Firm on projects associated with SEPTA unless you would be able to do so without engaging in prohibited representation before SEPTAas set forth above. It is noted that Section 1103(g) would prohibit you from attending meetings with SEPTA as such activity would necessarily involve prohibited representation before SEPTA. 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: During your employment as a Deputy General Manager (Operations and EM&C) with SEPTA, you were considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your employment with SEPTA, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. Your former governmental body is SEPTA in its entirety. For the first year following termination of your employment with SEPTA, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in “representation” of a “person” — including but not limited to your new employer, the Firm — before SEPTA. The restrictions as to representation outlined above must be followed. Lund, 24-510 January 26, 2024 Page 5 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 receivedat 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