HomeMy WebLinkAbout88-529 MillerSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (7171 783-1610
(larch 8, 1988
ADVICE OF COUNSEL
John E. Miller, P. E., P.L.S.
Chestnut Hill Road, Box 637A
Coopersburg, pa 18036
Re: Former Public Employee; Section 3(e), PennDot, Civil Engineer
Dear Mr. Miller:
88 - 529
This responds to your letter received by the State Ethics Commission
February 5, 1988, 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
Department of Transportation.
Facts: You state that you are currently a Civil Engineer for Engineering
District 5 -0 of the Pennsylvania Department of Transportation (PennDot)
working as a District Plans Engineer who supervises 34 engineers, designers,
drafters and support personnel in the preparation of plans and contract
documents for highway reconstruction and rehabilitation projects. You also
state that your unit has few dealings with consulting engineers which is
limited to providing them with information from archives and as to technical
reviews of Highway Occupancy Permit applications. After noting that you will
be resigning effective March 2, 1988, you state that you will accept a
position as Senior Engineer with Keystone Consulting Enginerrs, Inc., a
consulting firm with offices in Bethlehem and Wescosville, Pennsylvania. You
state that in your new position you will be performing engineering design and
review for a number of municipal and commercial clients in the Lehigh Valley
area which is within the boundaries of District 5 -0. In your new position,
you note that you very likely will deal with the personnel in the District 5 -0
Office as well as potentially perform highway design as a consultant to
PennDot even though, to the best of your knowledge, Keystone does not have any
contracts at the present time.
John E. Miller, P. E., P.L.S.
March 8, 1988
Page 2
Fran you job description /specification, which is incorporated herein by
reference, it is noted that you have the following duties and
responsibilities: to plan and coordinate the activities of subordinate
engineering and technical staff relative to preparing highway and bridge
design proposals, checking consultant and district prepared design plans,
preparing straight line diagrams, preparing estimates for payment to
contractors in reviewing as -built plans to ensure that all costs billed are
legitimate; to assist staff engineers in checking design plan adherence to
PennDot specifications and standards, to interpret design criteria, to provide
engineering guidance concerning plan redesign and to provide policy or
technical guidance concerning design method problems; to coordinate the
preparation of property plots, plans, straight -line diagrams and documents and
to ensure the timely completion thereof, to assure that materials are prepared
in accordance with PennDot standards and specifications; to assist in
activities of subordinate technical staff regarding estimates, approvals as to
as -built plans, to provide professional engineering guidance, to interpret
final preparation procedures, to recommend methods of reporting information
and lastly to perform such other duties as are required by your position.
Discussion: As a Civil Engineer for Penndot, you are a "public employee" as
that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1.
As such, your conduct is subject to the provisions of the Ethics Act.
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 it is necessary to identify the
"governmental body" with which you were associated while working with PennDot.
Then, the scope of the prohibitions associated with the concept and term of
"representation" must be reviewed. 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 Opinion, 79 -010. See also Kury vs.
Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 9411
John E. Miller, P. E., P.L.S.
March 8, 1988
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 District 5 -0. Thus, the
"governmental body" with which you have been "associated" upon the termination
of your employment would be District 5 -0. 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 District
5-0.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the District 5 -0. Likewise, there is no
general limitation on the type of employment in which you may engage,
following your departure from PennDot. It is noted, 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 Opinion, 83 -014; Zwikl Opinion, 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 District 5 -0), including, but not
limited to, negotiations or renegotiations on contracts with the District
5 -0;
2. Attempts to influence District 5 -0;
John E. Miller, P. E., P.L.S.
March 8, 1988
Page 4
3. Participating in any matters before District 5 -0 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 District 5 -0 in relation to legislation, regulations, etc.
See Russel 1 Opinion, 80 -048 and Seltzer Opinion, 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
District 5 -0, constitutes an attempt to influence your former governmental
body. See Kilareski Opinion, 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 District 5 -0, is not prohibited as "representation." See
Kotal i k Opinion, 84 -007.
You may, assist in the preparation of any documents presented to District
5 -0 so long as you are not Identified as the preparer. You may also counsel
any person regarding that person's appearance before District 5 -0. Once
again, however, your activity in this respect should not be revealed to the
District 5 -0. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of District 5 -0 to
secure information which is available to the general public. See
Cutt Opinion, 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
5 -0 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 Opinion,
80 -056 and Beaser Advice, 81 -538.
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.
Additionally, it i
would prohibit any publ
position of employment
understanding that the
working for his former
65 P.S. §403(b).
s noted that Section 403(b) of the State Ethics Act
is employee or public official from accepting a
if said position has been offered based upon the
official conduct of the employee or official, while
governmental body, was influenced by such offer. See
John E. Miller, P. E., P.L.S.
March 8, 1988
Page 5
Conclusion: As a Civil Engineer, 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. Your
governmental body for the purpose of the one year representation restriction
is District 5 -0.
Lastly, the propriety of your conduct has only been addressed under the
Ethics Act.
Further, should you termi nate your employment or service, a s 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.
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.
Sincerely,
Vincent J. Dopko
General Counsel