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HomeMy WebLinkAbout06-523 MackeyRex R. Mackey, P.E. 778 Enterprise Road Grove City, PA 16127 ADVICE OF COUNSEL February 28, 2006 06 -523 Re: Former Public Employee; Section 1103(g); Senior Assistant Construction Engineer; Senior Civil Engineer Manager; District 6 -0; PennDOT. Dear Mr. Mackey: This responds to your letter of January 25, 2006, 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., would present any restrictions upon employment of a Senior Assistant Construction Engineer classified as a Senior Civil Engineer Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You are a former Senior Assistant Construction Engineer, classified as a Senior Civil Engineer Manager, for PennDOT, District 6 -0. In your former position, you managed the US -202/I -476 reconstruction project and had oversight responsibility for the construction programs in Chester and Delaware Counties. You have submitted copies of your former PennDOT job description and the organizational chart for PennDOT District 6 -0, which documents are incorporated herein by reference. You have also submitted a copy of your resume. Having left PennDOT on October 22, 2005, you currently work for Urban Engineers performing constructability reviews on "bid packages" to find errors in construction methodology and the specifications that could result in construction claims for the client. You state that this work is always performed in the Urban Engineers office, such that you have no contact with the client. You further state that you usually work in a team environment, such that the end product, a written report, is not identifiable as having been produced by you. You request an advisory as to the propriety of your performing constructability reviews for PennDOT contracts that were awarded prior to your termination date in engineering districts other than District 6 -0. 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 Mackey, 06 -523 February 28, 2006 Page 2 been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. In the former capacity as a Senior Assistant Construction Engineer, classified as a Senior Civil Engineer Manager, 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 became 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. Mackey, 06 -523 February 28, 2006 Page 3 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. The governmental body with which you have been 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, your specific inquiry shall be addressed. You ask whether you may perform constructability reviews for PennDOT contracts that were awarded prior to your termination from PennDOT in engineering districts other than District 6 -0. You are advised that Section 1103(g) of the Mackey, 06 -523 February 28, 2006 Page 4 Ethics Act would not prohibit you from performing such work as long as you would not engage in prohibited representation before PennDOT. For such pre - existing contracts not involving PennDOT District 6 -0, your name could appear on routine invoices submitted to PennDOT if required by PennDOT regulations. See, Abrams/Webster, Opinion 95 -011. Based upon the facts that 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: In the former capacity as a Senior Assistant Construction Engineer, classified as a Senior Civil Engineer Manager, for the Commonwealth of Pennsylvania, Department of Transportation ("PennDOT"), District 6 -0, 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 became a "former public employee" subject to Section 1103() 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. In response to your specific inquiry as to whether you may perform constructability reviews for PennDOT contracts that were awarded prior to your termination from PennDOT in engineering districts other than District 6 -0, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from performing such work as long as you would not engage in prohibited representation before PennDOT. For such pre - existing contracts not involving PennDOT District 6 -0, your name could appear on routine invoices submitted to PennDOT if required by PennDOT regulations. 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. Mackey, 06 -523 February 28, 2006 Page 5 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