HomeMy WebLinkAbout04-595 GenuaVito Genua
1106 Stoneybrook Lane
West Chester, PA 19382
Dear Mr. Genua:
ADVICE OF COUNSEL
September 22, 2004
04 -595
Re: Former Public Employee; Section 1103(g); Assistant Highway District Engineer;
District 6; PennDOT.
This responds to your letter of August 18, 2004, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., presents any restrictions upon employment of an Assistant
Highway District Engineer following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: You are currently employed by PennDOT as an Assistant Highway District
Engineer overseeing state highway and bridge design development in Bucks, Chester,
Delaware, Montgomery, and Philadelphia Counties, collectively known as District 6.
You have submitted a copy of your job description, which is incorporated herein by
reference.
You are contemplating leaving PennDOT and continuing employment in the
private engineering consultant sector. You pose the following questions:
1. Whether as an employee of a private firm, your activities would be restricted
solely as to District 6, or whether you would be permitted to seek opportunities and
participate in engineering efforts in other engineering districts, or as part of PennDOT
wide efforts, including training, manual preparation, or transportation management;
2. Whether as an employee of a private firm, you would be permitted to seek
opportunities and participate in engineering efforts for other municipalities and agencies
within District 6 or throughout the rest of the Commonwealth, including the Pennsylvania
Turnpike Commission, the Delaware River Port Authority, the Delaware Valley Regional
Planning Commission, and county governments, townships, boroughs, and cities within
and outside the geographic area of District 6.
You state that while you currently do not have a direct bearing on which
engineering firms Commonwealth agencies select, the agencies do receive federal and
state funding for transportation improvements along state and local facilities. The
Genua, 04 -595
September 22, 2004
Page 2
agencies and the engineering consultant then coordinate the development of the design
effort with District personnel (who are part of the Design Group that you manage) to
ensure compliance with applicable standards and processes.
Given the foregoing facts, you seek guidance as to your post - employment
restrictions.
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 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 an Assistant Highway District Engineer 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 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; 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.
Genua, 04 -595
September 22, 2004
Page 3
"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 /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 ublic
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.
Genua, 04 -595
September 22, 2004
Page 4
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 District 6.
Therefore, for the first year after termination of your service with PennDOT, Section
1103) of the Ethics Act would apply and restrict "representation" of "persons" before
PennDOT.
Having set forth the restrictions under Section 1103(g) of the Ethics Act, your
specific inquiries shall now be addressed.
In response to your first question, you are advised that as an employee of a
private firm, you would be prohibited from engaging in prohibited "representation" before
PennDOT in its entirety including, but not limited to District 6.
In response to your second question, Section 1103(a) would only apply to restrict
you from engaging in prohibited "representation" before PennDOT, but would not apply
as to municipalities and agencies other than PennDOT within District 6 or throughout
the rest of the Commonwealth, including the Pennsylvania Turnpike Commission, the
Delaware River Port Authority, the Delaware Valley Regional Planning Commission,
and county governments, townships, boroughs, and cities within and outside the
geographic area of District 6. However, where such municipalities and agencies would
have dealings with PennDOT, you must exercise caution so that no written documents
containing your name would be submitted to PennDOT.
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 an Assistant Highway District Engineer 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 " ormer 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
District 6. 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
Genua, 04 -595
September 22, 2004
Page 5
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