HomeMy WebLinkAbout04-549 BradoThomas W. Brado, PE
2031 Lexington Drive
Connellsville, PA 15425
Dear Mr. Brado:
ADVICE OF COUNSEL
May 21, 2004
04 -549
Re: Former Public Employee; Section 1103(g); Assistant District Executive for
Design; PennDOT.
This responds to your letters of April 12 and 19, 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 an Assistant
District ExecutiveTor Design following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: You are a licensed professional engineer employed as the Assistant
ii5sfrict Executive for Design in District 12 -0, PennDOT. You have submitted a copy of
your job description, which is incorporated herein by reference.
On May 7, 2004, you will be retiring from PennDOT with 35 Y2 years of service.
You are considering seeking employment with SAI Consultants, Inc., a design consultant
located in Pittsburgh, Pennsylvania. The specific position that you are applying for
involves design management services of four reconstruction design teams that have
contracts with the Pennsylvania Turnpike Commission ( "Turnpike Commission ") at
various locations on the mainline of the Turnpike. If SAI Consultants, Inc. is successful in
securing the Design Management Contract with the Turnpike Commission, you will be
assigned to the position of Project Manager. You have submitted a copy of the Turnpike
Commission's request for letters of interest, which is incorporated herein by reference.
You note that coordination with PennDOT will be required where state owned
roads are affected by the Turnpike Reconstruction Projects. To your knowledge, the
Turnpike projects were planned, programmed and funded by the Turnpike Commission;
therefore, you personally had no previous involvement in the planning, programming or
funding of the mainline Turnpike projects.
As to the above, you ask for guidance as to how you should conduct yourself in
coordination activities with PennDOT if you work as a design consultant for the Turnpike
Commission on Turnpike projects. You note that one of the Turnpike projects is located
in District 12 -0, while the remaining projects are located in other Districts.
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
Brado, 04 -549
May21, 2004
Page 2
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 the Assistant District Executive for Design 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 e cT - sc ription, 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.
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.
Brado, 04 -549
May21, 2004
Page 3
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,
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 is PennDOT in its entirety including, but not limited to, 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.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised
that although the Ethics Act would not prohibit you from accepting employment as a Project
Manager for SAI Consultants, Inc. following your retirement from PennDOT, the Act would
restrict your conduct in your new position to the extent that such conduct would constitute
prohibited "representation" before PennDOT as delineated above. You note that in your
new position, coordination with PennDOT will be required where state owned roads are
affected by the Turnpike Reconstruction Projects. To the extent that your activities in
relation to such coordination efforts would involve prohibited "representation," you could not
perform such activities without transgressing Section 1103(g) of the Ethics Act.
Brado, 04 -549
May21, 2004
Page 4
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 /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 the Assistant District Executive for Design 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 is PennDOT in its entirety including, but not limited to, 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 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