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HomeMy WebLinkAbout06-607 NardoneLeonard Nardone, P.E. 431 Keebler Road King of Prussia, PA 19406 Dear Mr. Nardone: ADVICE OF COUNSEL December 12, 2006 06 -607 This responds to your letter dated November 1, 2006 and your facsimile transmission dated November 7, 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 Civil Engineer Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "). Facts: You terminated your employment with PennDOT on October 7, 2006. You were employed with PennDOT in District 6 -0 for fifteen years, during which time you held several positions. Your last position with PennDOT was that of Senior Civil Engineer Manager in the District 6 -0 Construction Unit. You have submitted a copy of your job description, which is incorporated herein by reference. A copy of the job classification specifications for your position has also been obtained and is incorporated herein by reference. You have been a Pennsylvania Registered Professional Engineer in good standing since 2002. You are currently employed as a project manager /engineer with a private consulting firm (the "Firm ") that engages in the business of roadway and bridge civil engineering design. The Firm frequently does business with, and provides engineering services to, local governments (i.e., cities, counties, and townships) within Pennsylvania that select the Firm to work on a project and enter into an agreement with the Firm. You state that in your position, you would be part of the Firm's team of employees that would provide services to the local government, and you would interact with only the local government. The Firm would bill the local government for your services, and all monies paid to the Firm for services provided on a project would be paid by the local government. You state that a local government might be eligible to receive federal or state reimbursement through the PennDOT engineering districts for the Firm's services on a project. A local government will decide whether to seek federal or state reimbursement for a project prior to engaging the services of the Firm. To receive reimbursement, the local government submits to PennDOT invoices for services provided on the project by Nardone, 06 -607 December 12, 2006 Page 2 the Firm. The local government then receives reimbursement at a predetermined percentage rate. You assert that you do not dispute that you would be considered a former public employee under the Ethics Act or that PennDOT would be considered your former governmental body. Rather, you ask whether the Ethics Act would impose any restrictions upon you with respect to the scenario outlined above. Citing Popovich, Opinion 89 -005, you express your view that your involvement with local government projects as set forth above would not pose any financial conflicts, give rise to any real or perceived violations of the public trust, or bestow any special treatment or benefits upon either you or the Firm. 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 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 Nardone, 06 -607 December 12, 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 Nardone, 06 -607 December 12, 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 are deemed to 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(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, you are advised as follows. The Ethics Act would prohibit you from having your name appear on invoices submitted to PennDOT except to the narrow and limited extent permitted by Webster, supra, as set forth above. This prohibition would include the submission of such invoices by local government entities. To the extent you would be able to work on projects for local governments without engaging in prohibited representation before PennDOT, the Section 1103(g) restrictions would not preclude you from engaging in such work. 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 Senior Civil Engineer Manager 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, District 6 -0. The restrictions as to representation outlined above must be followed. The Ethics Act would prohibit you from having your name appear on invoices submitted to PennDOT except to the narrow and limited extent permitted by Webster, supra, as set forth above. This prohibition would include the submission of such invoices by local government entities. To the extent you would be able to work on projects for local governments without engaging in prohibited representation before PennDOT, the Section 1103(g) restrictions would not preclude you from engaging in such work. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, since service has been 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. Nardone, 06 -607 December 12, 2006 Page 5 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, Robin M. Hittie Chief Counsel