HomeMy WebLinkAbout04-528 RadcliffeDear Mr. Radcliffe:
ADVICE OF COUNSEL
R. Brian Radcliffe, Director
Bureau of Information Systems
Pennsylvania Depa[tment of Transportation
400 North Street, 5 Floor
Harrisburg, PA 17120 -0041
April 9, 2004
04 -528
Re: Former Public Employee; Section 1103(g); Director of the Bureau of Information
Systems; PennDOT.
This responds to your letter of March 11, 2004, 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 Director of the
Bureau of Information Services following termination of service with PennDOT.
Facts: You are currently employed by PennDOT as Director of the Bureau of
Nation Systems, a position which you have held for approximately 10 years. You
were previously employed for over 25 years by the Pennsylvania Liquor Control Board
as Director of the Bureau of Management Information Systems.
As Director of the Bureau of Information Systems, your responsibilities include
overall direction of all bureau activities in delivery and support of approximately 98% of
PennDOT's information technology, voice and data communication needs. You are
responsible more directly for administration, human resource allocation, capacity
planning, project review, scheduling, planning, equipment, software and services
acquisition, and contractor performance monitoring, all done through a staff of
approximately 153 employees.
You intend to retire from state service at the close of business on March 26,
2004. Following your retirement, at some point, you would like to continue to work a
few years in the following areas of activity:
1. Employment or work as an independent contractor performing consulting
in the information technology and computer systems areas. You expect that your
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April 9, 2004
Page 2
assignments would be to work on contractor delivered projects in planning, proposal
development, IT Security, business development and /or project management. You
expect that the work you are most marketable for would involve contractor support for
state agencies. You generally would not be seeking contracts directly as an
independent contractor, but would work through an established IT contracting firm.
2. Work as an independent contractor certified to perform building inspection
under a state mandated building code. Your work would be delivered on a part time
basis to smaller municipalities in Pennsylvania that are unable to justify a full time
building inspector.
3. Other work not directly related to information technology or involving state
agencies, such as making and selling wood products.
In addition to the above, you would like to continue to retain your appointed
position as a member of the Dillsburg Borough Planning Commission.
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 IDased
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.
It shall be assumed for purposes of this advisory that as Director of the Bureau of
Information Systems for PennDOT, you would be 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.
Consequently, upon termination of public service, you would 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 ":
§ 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
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
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April 9, 2004
Page 3
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 /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 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 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
Radcliffe, 04 -528
April 9, 2004
Page 4
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 associated upon termination of
public service is PennDOT in its entirety including, but not limited to, the Bureau of
Information Systems. Therefore, for the first year after termination of service with
PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of
' persons" before PennDOT.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that the Ethics Act would not preclude you from working in any of the three
areas described above. However, the Ethics Act would restrict your conduct in your
new position to the extent that such conduct would constitute prohibited "representation"
before PennDOT during the one year period, as delineated above. You should be
particularly cognizant of the restrictions of Section 1103(g) where your new job duties
would involve PennDOT, your former governmental body.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 1103(g) 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 /public employee
and no public official /public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
official /public 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.
Conclusion: It shall be assumed for purposes of this advisory that as Director of
the Bureau of Information Systems for PennDOT, you would be considered a "public
employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. Upon termination of service with PennDOT, you would become
a "former public employee" subject to Section 1103(g) of the Ethics Act. The former
governmental body is PennDOT in its entirety including, but not limited to, the Bureau of
Information Systems.
The restrictions as to representation outlined above must be followed. 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
Radcliffe, 04 -528
April 9, 2004
Page 5
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