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HomeMy WebLinkAbout85-523 Schork JrMr. Joseph Schork, Jr. 45 Stonegate Road Indiana, PA 15701 Dear Mr. Schork: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 March 12, 1985 ADVICE OF COUNSEL RE: Former Public Employee; Section 3(e), Highway Designer II 85 -523 This responds to your letter of February 6, 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: According to the information forwarded to the State Ethics Commission, you are a former employee of the Pennsylvania Department of Transportation, hereinafter, PennDot. While employed by PennDot you served as a Highway Designer II in District 10 -0, hereinafter, the District. In this capacity you operated generally as a liaison between the District and private engineering consultant firms employed by PennDot on District projects. We have reviewed your job description and have incorporated that document herein by reference. As part of your function you participated in consultant selection, reviewed consultant roadway design submissions and attended field and office conferences. A review of your responsibilities indicates that you performed no statewide functions or duties. The information obtained by the Commission indicates that you retired from PennDot on July 11, 1984. You are now considering providing design services to engineering consultants. These consultants may have business with PennDot. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. Mr. Joseph Schork, Jr. March 12, 1985 Page 2 As a Highway Designer for PennDot, you are 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, 65 P.S. 402 and 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 Montgomery, 84 -004 . 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 the District. Thus, the "governmental body" with which you have been "associated" 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 the District. Likewise, there is no general limitation on the type of employment in which you may engage, 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, Mr. Joseph Schork, Jr. March 12, 1985 Page 3 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, but not limited to, negotiations or renegotiations on contracts with the 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 Pennflot; 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. Once again, however, your activity in this respect should not be revealed to the 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. Mr. Joseph Schork, Jr. March 12, 1985 Page 4 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 Beaser, 81 -538. Conclusion: As a Highway Designer, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with Pennflot, 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, should you terminate your employment or service as outlined above, 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. 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. JC /rdp This letter is a public record and will be made available as such. Sincerely, John J. Contino General Counsel