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HomeMy WebLinkAbout85-594 LugarMs. Carol J. Lugar 107 Bloomingdale Avenue, #204 Blain, Pennsylvania 19087 Dear Ms. Lugar: Marling Address. State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108- 1470,, Novemher 18, 1985 ADVICE OF COUNSEL 85 -594 Re: Former Public Employee; Section 3(e), Civil Engineer III, Pennsylvania Department of Transportation This responds to your letter of October 16, 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: On Octoher 30, 1985, you terminated your position as a project manager in the Division of Locations, Liaison and Planning, for Engineering District 6 -0 within the Pennsylvania Department of Transportation. In that position you were classified as a Civil Engineer III. Generally, in your position with the Department, you acted as a consultant liaison on assigned highway design projects. In this respect, participated in the design and preparation of plans for the most complex hridges in the district. Generally, you acted as a contact for consultants who had been awarded contracts. You were involved in field reviews in conjunction with the development of design details, you reviewed plans and rtaterials prepared by consultants. You also reviewed the progress being made on particular projects and you also provided guidance with regard to departmental policies and district requirements. You were responsible for making appropriate recommendations concerning completed work prior to the suhmission to the central office. You represented the district at hearings, meetings and with the puhlic as required in conjunction with assigned projects and you performed other related duties as required. We have reviewed both your current job description as well as the classification specification (1113) for the position that you held while employed by the Department. These documents have heen incorporated herein by reference. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Ms. Carol J. Lugar November 18, 1985 Page 2 You indicate that you will be working in a new position as a project engineer with the firm of Conceptual Planners and Engineers Inc., i n Norristown, Pennsylvania. You do not indicate what specific functions you will perform for that firm. You have requested that the Commission advise you as to your responsibilities and duties within the purview of 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 Civil Engineer III, signed to the Division of Locations Liaison and Planning for the Pennsylvania Department of Transportation, hereinafter the Department, 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. 65 P.S. §402; 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 -004, Beri, 85 -514; Kozy, 84 -608. 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 the Department. 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). Ms. Carol J. Lugar November 18, 1985 Page 3 From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised within District 6 -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 the Department, 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 the Department. We do note, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction, 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 the Department; Ms. Carol J. Lugar November 18, 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 the Department, 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. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the District your representation of, or work for your new employer. 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. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a Civil Engineer III, assigned to the Division of Design Locations Liaison and Planning, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Pennsylvania Department of Transportation, 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. Your governmental body for the purpose of the one year representation restriction is the District 6 -0. 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. Pls. Carol J. Lugar November 18, 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. 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 This letter is a public record and will be made available as such. Si ncer y, John J. tino General Counsel