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HomeMy WebLinkAbout06-577 FecekGeorge J. Fecek 1906 Bower Hill Road Pittsburgh, PA 15243 Dear Mr. Fecek: ADVICE OF COUNSEL August 11, 2006 06 -577 This responds to your letter of July 13, 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 following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You are currently employed as a Civil Engineer for PennDot in the District 11 -0 Design Unit. Your current duties include performing basic and routine engineering work for in -house roadway projects. You are a member of a design squad that prepares plans, specifications and estimates. You do not award contracts or authorize payments, select consultants or review their work, or supervise any employees. You have submitted a copy of the job description for your position, which is incorporated herein by reference. It is noted that a Civil Engineer has the authority, inter alia, to develop and design roadway and bridge projects and to participate in design field views and final inspections. You would like to terminate your employment with PennDot and pursue a career in private industry. Your prospective new employer is a large consulting engineering firm that holds contracts to perform engineering services for the Commonwealth. You state that you are almost certain that you are subject to the provisions of the Ethics Act. You seek guidance as to what activities following termination of Commonwealth employment would constitute prohibited "representation" under Section 1103(g) of the Ethics Act, including answers to the following specific inquiries: 1. As a Transportation Designer working for a consulting company providing engineering services to PENNDOT, could I perform routine engineering assignments such as roadway design, requiring application of standard engineering techniques and procedures on PennDot projects? 2. Would the appearance of my name on a payroll or other formal submission to PENNDOT constitute a `representation' as intended in Section 1103(g) of the State Ethics Act? Fecek, 06 -577 August 11, 2006 Page 2 3. Would the appearance of my name or initials on plans or within engineering calculations on a PENNDOT project that were produced under the direction of and recommended by another responsible figure (i.e., a licensed professional engineer) constitute a `representation as intended in Section 1103(g) of the State Ethics Act? 4. Would my attendance at a meeting with PENNDOT officials, where my capacity was to obtain information from PENNDOT to be used in performing routine engineering assignments such as roadway design, requiring application of standard engineering techniques and procedures on PennDot projects constitute a `representation' as intended in Section 1103(g) of the State Ethics Act ?" 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. As a Civil 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 ": § 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 Fecek, 06 -577 August 11, 2006 Page 3 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 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 Fecek, 06 -577 August 11, 2006 Page 4 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 would be PennDOT in its entirety including, but not limited to, District 11- 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 inquiries shall be addressed. In response to your first specific inquiry, you are advised that the Ethics Act would not prohibit you from performing routine engineering assignments requiring application of standard engineering techniques and procedures on projects your new employer would be working on for PennDot provided that you would not have direct contact with PennDot personnel or any other contact within the ambit of prohibited representation. Such prohibited contact would include submitting roadway designs containing your name to PennDot. In response to your second and third specific inquiries, you are advised that the inclusion of your name on documents submitted to or reviewed by PennDot would constitute prohibited representation before PennDot. However, if you would perform work on pre- existing contracts that your new employer had with PennDot before you left your employment with PennDot, and such contracts did not involve the "unit" of PennDot where you formerly worked, specifically District 11 -0, your name could appear on routine invoices as to those contracts if required by the regulations of PennDot. See, Abrams/Webster, Opinion 95 -011. In response to your fourth specific inquiry as to whether your attendance at a meeting with PennDot officials in order to obtain information to be used in performing routine engineering assignments would constitute prohibited representation before PennDot, you are advised as follows. To the extent such a meeting would not be open to the public and you would be attending in your capacity with your new employer, such would constitute prohibited representation of your new employer before PennDot. To the extent such a meeting would be open to the general public, you could attend the meeting as a member of the general public; however, if your role would go beyond that of a general observer so that you would actually participate and /or advocate positions, not as a member of the general public but as a representative of your new employer, such representation would be prohibited. 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 Fecek, 06 -577 August 11, 2006 Page 5 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 Civil 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. The former governmental body would be PennDOT in its entirety, including but not limited to District 11 -0. Section 1103(g) of the Ethics Act would restrict 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 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