HomeMy WebLinkAbout06-572 ScuoteguazzaEric P. Scuoteguazza
GAI Consultants, Inc.
Pittsburgh Office
385 East Waterfront Drive
Homestead, PA 15120 -5005
ADVICE OF COUNSEL
July 12, 2006
06 -572
Dear Mr. Scuoteguazza:
This responds to your letter of June 9, 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 Historic
Preservation Specialist following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: On May 5, 2006, you terminated your employment as a Historic
Preservation Specialist for PennDot's Bureau of Design, Environmental Quality
Assurance Division. In your position, you were responsible for providing guidance to
three transportation districts (Districts 9 -0, 10 -0 and 12 -0), with regard to archaeological
compliance with state and federal legislation as delegated by the Federal Highway
Administration. You have submitted a copy of the job description for the position of
Historic Preservation Specialist, which is incorporated herein by reference. It is noted
that a Historic Preservation Specialist has the authority, inter alia, to review
technical /price proposals for the performance of archaeological investigations and to
develop and administer open -end contracts for cultural resource studies and
archaeological investigations.
On May 8, 2006, you began working as a Principal Investigator (Lead
Archaeologist) for GAI Consultants, Inc. ("GAI"), a private engineering and
environmental consulting firm located in Pittsburgh, Pennsylvania. PennDot is one of
GAI's clients. You request an advisory as to your ability to perform work for GAI on
behalf of PennDot without transgressing the Ethics Act. You express your view that
there are temporary stipulations [restrictions] regarding the performance of work on
behalf of PennDot, and you seek guidance as to the extent and duration of those
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 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
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July 12, 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 Historic Preservation Specialist 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.
Scuotequazza, 06 -572
July 12, 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 were 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 your 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 specific
inquiry shall be addressed. You ask in what capacity you may perform work for GAI on
behalf of PennDot. You are advised that the Ethics Act would prohibit any actions as
delineated above that would constitute prohibited representation as well as the inclusion
of your name on invoices submitted by GAI to PennDot, even though the invoices would
Scuotequazza, 06 -572
July 12, 2006
Page 4
pertain to a contract that existed prior to your termination of service with PennDot.
However, if such a pre- existing contract would not involve the Bureau of Design where
you formerly worked, your name could appear on routine invoices submitted as to those
contracts provided that such is required by the regulations of PennDot and you would
not be engaging in the activities that would constitute prohibited representation before
PennDot. The duration and extent of the restrictions as to representation imposed by
the Ethics Act have been addressed above.
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: In the former capacity as a Historic Preservation Specialist 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 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. Section 1103(g) of the Ethics Act restricts you from
engaging in any activity that would constitute prohibited representation before PennDot
for one year following termination of Commonwealth employment. 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
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July 12, 2006
Page 5
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