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HomeMy WebLinkAbout85-531 Smith'Mr. George A. Smith 1235 Water Street Indiana, PA 15701 Dear Mr. Smith: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 April 11, 1985 ADVICE OF COUNSEL 85 -531 Re: Former Public Employee; Section 3(e), Transportation Construction Manager This responds to your letter of March 1, 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: You are currently employed by the Pennsylvania Department of Transportation, hereinafter PennDot, as a Transportation Contruction Manager I. In this position you serve in PennDot District 10 -0, hereinafter the District. We have reviewed your job description as well as the job specification (1064) for your position. This function generally includes managerial work in construction and materials inspection. An employee in this class directs the inspection of materials and workmanship on a complex road or bridge, or performs managerial and consultative work of equivalent scope and complexity. Work requires the interpretation of contract requirements through analysis of specifications and drawings, and the application of a variety of testing and inspection techniques. Work includes planning and organizing work, assigning work, reviewing work performance, evaluating employee performance, recommending employee selection, receiving and answering grievances, and approving leave. Work is accomplished through subordinate supervisors. Assignments require independent judgment in making on -site technical decisions. Work is assigned with general instructions and specific objectives by a technical supervisor who reviews work for results obtained. Mr. George A. Smith April 11, 1985 Page 2 While you have indicated in your letter of request that you have served in PennDot for 38 years, you do not indicate if you have maintained the same position throughout your employment. Therefore, for the purpose of this advice we will assume that you have served in District 10 -0 for that period. If this assumption is in error, a further review of your employment history may be required in order to supplement this advice. You have been offered a position with a consulting firm as an inspector and you inquire as to what, if any, restrictions will be imposed upon you under the State Ethics Act. 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. As a transportation construction manager 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 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 have 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 -006. Consequently, upon termination of this employment, you would become 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 Mr. George A. Smith April 11, 1985 Page 3 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 10 -0. 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, 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, but 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; Mr. George A. Smith April 11, 1985 Page 4 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 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 Beaser, 81 -538. Conclusion: As a transportation construction manager, 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, 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. Mr. George A. Smith April 11, 1985 Page 5 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 /sfb Si ncerely, John Contino Gen ral Counsel