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HomeMy WebLinkAbout89-500 OConnerDear Ms. O'Connor: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 2, 1989 Ms. Colleen F. O'Connor 89 -500 R.D. #1, Route 663 Perkiomenville, PA 18074 Re: Former Public Employee; Section 3(e), Civil Engineer II, PennDot This responds to your letter of December 28, 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 Pennsylvania Department of Transportation. Facts: You state that on January 4, 1989, you will be terminating your position as Project Manager in the Project Management Unit in Engineering District 6, hereinafter District, in the Pennsylvania Department of Transportation, hereinafter PennDot. After noting that you will begin employment as a Staff Engineer with the firm of Spotts, Stevens & McCoy, Inc. in Reading, you request advice under the Ethics Act as to what restrictions would be imposed upon you in your new position following your termination of service with PennDot. The classification specification for a Civil Engineer II provides as follows: "Definition: This is professional work in the field of civil engineering. An employe in this class performs a variety of engineering duties associated with the location, design, or construction of roads, bridges, buildings, flood control projects, mine reclamation projects, recreational structures and facilities, or other civil engineering projects, transportation planning, or traffic control of highways. Work involves Ms. Colleen O'Connor February 2, 1989 Page 2 independently performing preliminary engineering studies, conducting location or foundation investigations, preparing plans and specifications, serving as construction engineer on the less complex projects, or assisting a higher -level engineer on substantial portions of complex projects. Emphasis is placed upon the application of a broad knowledge of engineering principles and practices to varied and comprehensive engineering projects. Work is assigned with. general instructions and objectives by a technical supervisor who provides assistance when difficult problems are encountered and reviews completed work for adherence to sound engineering practices." Your duties and responsibilities as set forth in your job description, which is incorporated by reference, require that you: act as a consultant liaison engineer on various highway and bridge design projects; coordinate consultant selection processees for assigned projects; arrange and conduct field views, meetings and reviews as to assigned projects; evaluate and process various engineering reports and submissions from consultants; represent the Department at meetings with various public officials, citizen or community groups; prepare all correspondence to consultants, federal, state and local officials, interested citizens and community groups relating to all phases of assigned projects; coordinate activities with the construction unit; work under the general supervision of another liaison engineer and perform such other duties and responsibilities as are required. Discussion: As a Civil Engineer II 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. 65 P.S. §402; 51 Pa. Code S1.1. 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. 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 Ms. Colleen O'Connor February 2, 1989 Page 3 governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 5403. Initially, to answer your request the "governmental body" with which you were associated while working PennDot must be identified. 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 v. 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 appears to have been 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, 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 the Ethics Commission has promulgated regulations to define "representation" as follows: Ms. Colleen O'Connor February 2, 1989 Page 4 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 employee. 51 Pa. Code S1.1. 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; 4. Lobbying, person or employer regulations, etc. Opinion 80 -044. that is representing the interests of any before PennDot in relation to legislation, See Russell, Opinion 80 -048 and Seltzer, 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, 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 the District, is not prohibited as "representation." See Kotalik, Opinion 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 Ms. Colleen O'Connor February 2, 1989 Page 5 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, 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 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. Additionally, it is noted that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). 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. Conclusion: As a Civil Engineer II, 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 the District. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Ms. Colleen O'Connor February 2, 1989 Page 6 such. This letter is a public record and will be made available as 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