HomeMy WebLinkAbout07-503 SmithSteven R. Smith
311 Market St., Apt. 2
New Cumberland, PA 17070
Dear Mr. Smith:
ADVICE OF COUNSEL
January 18, 2007
07 -503
This responds to your letters of December 5, 2006, and December 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., would present any restrictions upon employment of a Right of
Way Administrator 1 following termination of service with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ").
Facts: You retired from PennDOT on September 8, 2006. You were employed
as a Right of Way Administrator 1 with the Bureau of Design within PennDOT's Central
Office. At no time during your employment were you assigned to any Engineering
District within PennDOT. 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 (job code 17250) has also been obtained and is incorporated herein by
reference. You request an advisory from the State Ethics Commission as to the
following.
BTM Associates ( "BTM "), a right of way consulting firm, is currently under
contract with Engineering District 6 -0 to acquire right of way for the State Route 0202
Section 61 N project in Montgomery County. You state that per the terms of the
contract, Engineering District 6 -0 must approve all employees of BTM. You have
recently received an offer of employment from BTM for a position as an acquisition
agent. You state that Engineering District 6 -0 is willing to approve your employment
based upon the merits of your experience, but is concerned that this may violate the
Ethics Act.
You express your view that the Ethics Act should not apply to restrict your
employment with BTM since you were never assigned to Engineering 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
been submitted. It is the burden of the requester to truthfully disclose all of the material
Smith, 07 -503
January 18, 2007
Page 2
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion /advice, but any person may then submit a signed and sworn complaint, which
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act. To the extent you have inquired as to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
conduct, your inquiry may and shall be addressed.
In the former capacity as a Right of Way Administrator 1 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 and the job classification specifications,
which when reviewed on an objective basis, indicate 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.
Smith, 07 -503
January 18, 2007
Page 3
"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
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
Smith, 07 -503
January 18, 2007
Page 4
the Bureau of Design, the Central Office, and all of the Engineering Districts. Therefore,
for the first year after termination of 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 are advised that the submission of your name to
PennDOT Engineering District 6 -0 for approval of your employment as an acquisition
agent with BTM, a consultant firm under contract with Engineering District 6 -0 to acquire
right of way for the State Route 0202 Section 61 N project in Montgomery County, would
necessarily involve prohibited representation before your former governmental body.
This conclusion is not altered by the fact that during your employment with PennDOT,
you were never assigned to Engineering District 6 -0. As noted above, Section 1103(g)
would restrict representation before PennDOT in its entirety, including the Engineering
Districts.
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 Right of Way Administrator 1 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, the Central Office, and all of the Engineering Districts.
The restrictions as to representation outlined above must be followed. The submission
of your name to PennDOT Engineering District 6 -0 for approval of your employment as
an acquisition agent with BTM, a consultant firm under contract with Engineering District
6 -0 to acquire right of way for the State Route 0202 Section 61 N project in Montgomery
County, would necessarily involve prohibited representation before your former
governmental body. 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.
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.
Smith, 07 -503
January 18, 2007
Page 5
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