HomeMy WebLinkAbout05-581 ShellyBruce A. Shelly, P.E.
23 Greenshire Blvd.
Schwenksville, PA 19473
ADVICE OF COUNSEL
October 19, 2005
05 -581
Re: Former Public Employee; Section 1103(g); Geotechnical Engineer; Engineering
District 6 -0; PennDOT.
Dear Mr. Shelly:
This responds to your letter of September 12, 2005 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 a Geotechnical
Engineer following termination of service with the Commonwealth of Pennsylvania,
Department of Transportation ( "PennDOT ").
Facts: You are currently employed as a Geotechnical Engineer for PennDOT in
District 6 -0. You have submitted a copy of your job description, which is incorporated
herein by reference.
You state that you review and approve subsurface investigation, foundation
design and construction plans; provide foundation design, slope repair details, ground
improvement methods, pavement design soil parameters for various units within
PennDOT; manage staff for in -house work and review consultant work; develop and
administer Service Purchase Drilling Contracts for in -house work; and review drilling
contracts let by low bid developed by consultants.
You are retiring from PennDOT on October 7, 2005. Following your retirement,
you will work for DMJM Harris, which provides consultant services for roadway and rail
transportation. You state that 99% of the geotechnical work is given to subconsultants.
In your new position, you would provide a technical review of the subconsultant's work
prior to submission to PennDOT in order to provide a higher quality deliverable.
Based upon the foregoing facts, you seek an advisory opinion as to whether you
may work for DMJM only in the extreme western districts (mainly Pittsburgh District 11-
0). You state that you have no knowledge of or involvement with the selection or
dealings with DMJM as it relates to its work in the western districts.
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
Shelly, 05 -581
October 19, 2005
Page 2
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.
As a Geotechnical 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 ":
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:
65 Pa.C.S. § 1102.
§ 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.
§ 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.
Shelly, 05 -581
October 19, 2005
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 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.
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 6 -0.
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 of Section 1103(g) of the Ethics Act, you are
advised that the Ethics Act would not prohibit you from accepting employment with
DMJM. However, to the extent your activities would require you to interact with
PennDOT in a manner that would constitute prohibited "representation," your
performance of such activities would be contrary to Section 1103(g) of the Ethics Act.
An example of prohibited representation would include submitting written documents
containing your name to PennDOT, District 11 -0 or to any other district of PennDOT as
noted above.
Shelly, 05 -581
October 19, 2005
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 a Geotechnical 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 is PennDOT in its entirety including, but not limited to,
District 6 -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 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 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