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HomeMy WebLinkAbout06-551 Baldassari, Jr.Rose Anne McGowan, Esquire 117 Boulevard Avenue Throop, PA 18512 -3308 Dear Ms. McGowan: ADVICE OF COUNSEL May 4, 2006 06 -551 Re: Former Public Employee; Section 1103(g); Civil Engineer Manager; Bureau of Design; PennDOT. This responds to your letter of April 3, 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., presents any restrictions upon employment of a Civil Engineer Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: As counsel for John J. Baldassari, Jr. ( "Baldassari "), you seek an advisory from the State Ethics Commission. You have submitted facts, the material portions of which may be fairly summarized as follows. On March 10, 2006, Baldassari terminated service with PennDOT as a Civil Engineer Manager in PennDOT's Bureau of Design, Engineering Computing Management Division. You have submitted a copy of Baldassari's most recent job description, which is incorporated herein by reference. You state that Baldassari was responsible for providing technical support for civil engineering software (99% InRoads Software and 1 % other engineering programs), which support was provided primarily to civil engineers, highway designers, highway draftsman designers, and draftsman in the engineering districts; managing and developing training materials for civil engineering software (primarily InRoads); providing InRoads training to employees who worked in highway and bridge design squads such as civil engineers, highway designers, highway draftsman designers, and drafters; and providing Computer Aided Drafting and Design ( "CADD ") service to the PennDOT Central Office through his highway draftman designer. You note that being located at the Central Office in Harrisburg, Baldassari did not have statewide contacts because his job involved training people how to use the software, which did not require him to deal with District Project Managers who oversaw and tracked work done on private contracts. You state that to the best of Baldassari's knowledge, he did not interact with or have a working relationship with any of the District Project Managers while employed at the Central Office as it would be highly unusual McGowan /Baldassari, 06 -551 May 4, 2006 Page 2 and unlikely for a District Project Manager to attend a software training session taught by Baldassari in the Districts or to call Baldissari for customer support. Baldassari is now employed with Michael Baker, Jr. ( "Baker"), a private engineering consulting firm. Baldassari's new job responsibilities include utilizing MicroStation and /or InRoads to develop the horizontal and vertical geometry for a design project; utilizing MicroStation and /or InRoads to develop Cross Sections; and developing Typical Sections and Drainage Designs using computer software. You state that Baker has pre- existing contracts with PennDOT Districts 2 -0, 4 -0, 5 -0 and 8 -0. You further state that Baker has contracts with all Districts throughout the Commonwealth. You note that it has been the customary business practice of Baker to submit the invoices and billings for work performed on PennDOT contracts to the PennDOT District Project Manager. Thus, for example, if the contract would be in District 2 -0, the PennDOT person reviewing the invoices would be the District Project Manager from District 2 -0. Likewise, if the contract would be in District 4 -0, the District Project Manager from District 4 -0 would review the invoices. The Project Manager at Baker would deal exclusively with the PennDOT District Project Manager regarding questions relating to hours charged or roles performed on the project; Baldassari would be completely removed from any contact with anyone at PennDOT regarding his hours charged or work performed. Based upon the foregoing facts, you pose the following specific inquiries: 1. What would be encompassed in the "unit" where Baldassari worked; 2. Whether Baldassari would be permitted to do design work on the pre- existing state -wide Baker contracts and submit a routine invoice for work performed without transgressing the Ethics Act; and 3. If Baldassari would be permitted to work on pre- existing contracts and submit routine invoices except for the unit where he previously worked, whether he would be permitted to work on contracts throughout the districts, Districts 01 through 06 and Districts 08 through 12. 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 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 Civil Engineer Manager for PennDOT, Baldassari 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, Baldassari became a "former public employee" subject to Section 1103(g) of the Ethics Act. McGowan /Baldassari, 06 -551 May 4, 2006 Page 3 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. 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 McGowan /Baldassari, 06 -551 May 4, 2006 Page 4 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 Baldassari was associated upon termination of public service is PennDOT in its entirety including, but not limited to, the Bureau of Design. Therefore, for the first year after termination of Baldassari's 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, your three specific inquiries shall now be addressed. In response to your first question, it is clear that Baldassari did not work in a "unit "; rather Baldassari worked in an office (Bureau of Design) within a governmental body (PennDOT). Identifying the "unit" or "office" is relevant for making a determination as to what constitutes the governmental body with which the former public employee is associated. As noted above, the governmental body with which Baldassari is associated is PennDOT in its entirety including, but not limited to, the Bureau of Design. In response to your second and third questions, the Ethics Act would prohibit the inclusion of Baldassari's name on invoices submitted by Baker to PennDOT, even though the invoices would pertain to a contract that existed prior to Baldassari terminating service with PennDOT. However, if such a pre- existing contract would not involve the Bureau of Design where Baldassari worked, his name could appear on routine invoices if required by PennDOT regulations. 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 McGowan /Baldassari, 06 -551 May 4, 2006 Page 5 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 Civil Engineer Manager for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), John J. Baldassari, Jr. ( "Baldassari ") 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, Baldassari became 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, the Bureau of Design. 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