Loading...
HomeMy WebLinkAbout05-581-CL ShellyBruce A. Shelly, P.E. 23 Greenshire Blvd. Schwenksville, PA 19473 ADVICE OF COUNSEL December 21, 2005 05-581-CL Re: Former Public Employee; Section 1103(g); Geotechnical Engineer; Engineering District 6 -0; Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "); Clarification; Shelly, Advice of Counsel 05- 581. Dear Mr. Shelly: This responds to your memorandum of November 18, 2005, by which you requested clarification of Shelly, Advice of Counsel, 05 -581. Issue: Whether, as a former public employee who is presently subject to S ection 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g), you would run afoul of Section 1103(g) of the Ethics Act if your name would appear on routine invoices submitted to PennDOT as to pre- existing contracts your new employer had before you left PennDOT employment, if such contracts would not involve the PennDOT District where you previously worked and the inclusion of your name on such invoices would be required by the regulations of PennDOT. Facts: By letter dated September 12, 2005, you initially sought an advisory from the State Ethics Commission. In response to your request, Shelly, Advice 05 -581 was issued to you on October 19, 2005, which Advice is incorporated herein by reference. On November 18, 2005, you submitted a request for clarification as to the meaning of the word "unit" as it appears in the last sentence in the third paragraph of page 3 in the base advice, which sentence reads: "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." Shelly, supra at 3 (Citing Abrams/Webster, Opinion 95 -011). Shelly, 05- 581 -CL December 21, 2005 Page 2 You state that for former PennDOT employees, the word "unit" in the above sentence has been defined as the PennDOT District in which the public employee was previously employed. Based upon this interpretation, you posit that your name could appear on routine invoices as to pre - existing contracts with PennDOT involving Districts other than PennDOT District 6 -0, where you were previously employed. Discussion: In that Shelly, Advice of Counsel, 05 -581 is incorporated herein by reference, the quotations, citations and commentary as to the Ethics Act set forth within that Advice will not be repeated here. In response to the question that you have posed, you are advised that the issue you raise was addressed by the Commission in Abrams/Webster, Opinion 95 -011. Abrams/Webster involved an appeal filed by a former PennDOT civil engineer whose work was confined to District 3 -0. In that Opinion, the Commission held that in the event of work performed on a pre- existing contract and not involving District 3 -0, the name of the former PennDOT civil engineer could appear on routine invoices if required by the regulations of the agency to which the billing was submitted. Through a straightforward application of Abrams/Webster, supra, you are advised that if you would perform work on pre- existing contracts your new employer had with PennDOT before you left PennDOT employment, and such contracts would not involve the "unit" of PennDOT where you formerly worked, specifically PennDOT District 6 -0, your name could appear on routine invoices submitted to PennDOT as to those contracts if required by the regulations of PennDOT. 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: As noted in Shelly, Advice of Counsel, 05 -581, which is incorporated herein by reference, 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 "former public employee" subject to Section 1103(g) of the Ethics Act. Your former governmental body is PennDOT in its entirety including, but not limited to, District 6 -0 where you previously worked. The restrictions as to representation outlined in Shelly, Advice of Counsel, 05 -581 must be followed. As to the specific question you have posed, you are advised that if you would perform work on pre - existing contracts your new employer had with PennDOT before you left employment with PennDOT, and such contracts would not involve the "unit" of PennDOT where you previously worked, specifically PennDOT District 6 -0, your name could appear on routine invoices as to those contracts if required by the regulations of PennDOT. 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. Shelly, 05- 581 -CL December 21, 2005 Page 3 Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated IDy 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