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Home My WebLink About85-515 CarrierMr. Roger E. Carrier, P. E. Four Parkway Center 875 Greentree Road Pittsburgh, PA 15220 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 February 15, 1985 ADVICE OF COUNSEL 85 -515 Re: Former Public Employee; Section 3(e), Highway District Engineer III Dear Mr. Carrier: This responds to your letter of January 11, 1985, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Pennsylvania Department of Transportation. Facts: Pursuant to the information forwarded to the State Ethics Commission, you were employed with the Pennsylvania Department of Transportation, hereinafter, PennDot, until January 11, 1985. You served PennDot as a Highway District Engineer III in District 11 -0, hereinafter, the District. You have indicated that you now plan to teach civil engineering at Carnegie - Mellon University on a part -time basis, and that you also plan to act as a private consultant regarding waste management. You ask what limitations are imposed upon you under the Ethics Act in either the teaching or consulting fields. As a Highway District Engineer III, you administered the operation of the engineering district. As part of your duties you coordinated programming, budgeting, personnel assignments, material acquisition, equipment transfer, equipment maintenance, administrative reporting and functional reporting activities. We have reviewed the job description and classification specifications for your position and these documents are herein incorporated by reference. Mr. Roger E. Carrier February 15, 1985 Page 2 Discussion: As a Highway Engineer III for Pennsylvania Department of Transportation, hereinafter, PennDot, you were to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. See Section 2 of the Ethics Act, 65 P.S. 402 and the regulations of the Commission set forth at 51 Pa. Code 1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you had the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See Warfel, No. 81 -008. Consequently, upon termination of this employment, you became a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403. Initially, to answer your request we must identify the "governmental body" with which you were associated while working with PennDot. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to District 11 -0, hereinafter, the District. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the District. Therefore, within the first year after you would leave PennDot, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the District. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the District. Likewise, there is no general limitation on the type of employment in which you may engage, Mr. Roger E. Carrier February 15, 1985 Page 3 following your departure from PennDot. You may not, however, "represent" any new employer or client before the District as described more fully below for the first year after you leave PennDot. The Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1._ The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the District), including, hut not limited to, negotiations or renegotiations on contracts with the District; 2. Attempts to influence the District; 3. Participating in any matters before the District over which you had supervision, direct involvement, or responsibility while employed by PennDot; 4. Lobbying, that is representing the interests of any person or employer before the District in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission, has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the District, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave PennDot, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the District, is not prohibited as "representation." See Kotalik, 84 -007. You may, assist in the preparation of any documents presented to the District so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the District. Mr. Roger E. Carrier February 15, 1985 Page 4 Once again, however, your activity in this respect should not be revealed to the District. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the District to secure information which is available to the general public. See Cutt, 79 -023. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. This would be true even if your administration of a contract involved dealing with personnel of the District or personnel within PennDot generally. See Dalton, 80 -056 and [leaser, 81 -538. Conclusion: As a Highway Engineer III, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with PennDot, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Further, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfd Sincerely, .n� John J ontino Gen al Counsel