HomeMy WebLinkAbout04-541 DeemsRonald N. Deems
123 Haddenville Road
Uniontown, PA 15401
Dear Deems:
ADVICE OF COUNSEL
May 4, 2004
04 -541
Re: Former Public Employee; Section 1103(g); Senior Highway Designer;
Engineering District 12 -0; PennDOT.
This responds to your letters of March 24 and April 5, 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 Senior Highway
Designer following termination of service with the Commonwealth of Pennsylvania,
Department of Transportation ( "PennDOT ").
Facts: You are currently employed with PennDOT as a Senior Highway Designer
in fhe Design Liaison Unit of Engineering District 12 -0. You have submitted a job
description, which is incorporated herein by reference.
After 35 years of service with PennDOT, you are now considering retiring from
the Commonwealth and pursuing future employment with an engineering firm engaged
in highway and bridge design work for PennDOT. You ask whether you would be
permitted to work on PennDOT related design projects if you would accept employment
with an engineering firm.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of
the Ethics Act, 65 Pa.C.S. §§ 110700), (11), advisories are issued to the requestor 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 a Senior Highway Designer 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. This conclusion is based
upon the job c 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; planning;
inspecting; administering or monitoring grants; leasing; regulating; auditing; or other
activities where the economic impact is greater than de minimis on the interests of
another person.
Deems, 04 -541
May 4, 2004
Page 2
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 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-hiimself, 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.
Deems, 04 -541
May 4, 2004
Page 3
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 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 would be PennDOT in its entirety including, but not limited to, Engineering
District 12 -0. 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.
With regard to your accepting a position with an engineering firm engaged in
highway and bridge design work for PennDOT, as a practical matter, if your
employment with such firm would involve interaction with PennDOT so as to constitute
"representation," then such activities would be prohibited. If such would be the case, it
would appear to be impossible for you to perform the functions for your new employer
on PennDOT projects without transgressing Section 1103(g). As the Commission held
in Stanisic, Opinion 98 -004:
We similarly conclude, as did the Advice of Counsel, that during the first
year following termination of your employment with PennDOT, it would be
impossible as a practical matter for you to perform the functions of a
Construction Inspector working for a consulting firm on PennDOT
project(s) without transgressing Section 3(g). In performing inspections of
such project(s), you would be acting on behalf of your new employer and
would necessarily engage in prohibited representation before your former
governmental body, PennDOT. See, Long, Opinion No. 97 -010.
Id. at 5.
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
Deems, 04 -541
May 4, 2004
Page 4
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) oft 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: As a Senior Highway Designer for the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a
"public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S.
1101 et seq. ("Ethics Act "). 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 would be PennDOT in its entirety including, but not limited to,
Engineering District 12 -0. 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 Commission. A personal
appearance before the Commission will be scheduled and a formal Opinion w►11
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