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HomeMy WebLinkAbout89-523 JonesDear Mr. Jones: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 27, 1989 Mr. Frank A. Jones, Jr. 89 -523 58 Seventh Street Uniontown, PA 15401 Re: Former Public Employee, PennDot, Pennsylvania Turnpike Commission, Consultant Agreement This responds to your letter of February 27, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Ethics Act presents any restrictions upon a professional engineer, after he retires from PennDot, from entering into a consulting agreement with the Pennsylvania Turnpike Commission. Facts: You state that you are currently a registered professional engineer and graduate geologist and are in the process of retiring from the Pennsylvania Department of Transportation, hereinafter PennDot after 31 1/2 years of service. You then recite that your service has consisted of employment in the Engineering District 12, Uniontown, Pennsylvania, which included Fayette, Greene, Washington and Westmoreland Counties. You then indicate that your first seventeen years of employment was in the capacity of District Soils Engineer and during that time from 1957 to 1974 you were responsible for the soils and geological engineering for the design and construction of highway projects in the District. You note that Interstate 70 and Interstate 79 were complex and required extensive soils and geological investigations due to the unstable geologic formations relative to that geographical area. You state that the construction occurred in the 1960's and 1970's and that there has not been any major failures due to inadequate embankment foundations or cut designs on the Interstate System in District 12. You then note that in 1974, you have been in supervisory positions including Maintenance, Traffic, Right of Way, Material, Construction, Soils and currently Contract Development Units. You also note that at the Mr. Frank A. Jones, Jr. March 27, 1989 Page 2 request of the Turnpike Engineers you have offered assistance in recommending procedures to prevent major embankment failures on the current Turnpike System. You then advise that you are seeking to serve on the Turnpike Commission as a Professional Engineer in the soils engineering and geology in that capacity as per your qualifications. You advise that your duties will consist of reviewing consultant designs of roadway embankment and also cut slope designs as well as providing advice to Turnpike Engineers as to recommendations as to changes that should be incorporated in project designs. Additionally, you note that you will inspect projects that are under construction and advise Turnpike Engineers as to compliance of Turnpike contractors vis- a-vis contract specifications. You state that any contact with the PennDot Personnel would be in a professional capacity to share knowledge of mutual benefit to all concerned. You conclude by requesting advice from the Ethics Commission as to the propriety of your employment with the Pennsylvania Turnpike Commission. Discussion: As a Professional Engineer in PennDot holding a supervisory position, you are 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. 5402; 51 Pa. Code 51.1. Consequently, upon termination of this employment or service, 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. 5403. Generally, in a request of this nature, the Commission would attempt to identify with specificity the governmental body with which you were associated while serving with PennDot. 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 Mr. Frank A. Jones, Jr. March 27, 1989 Page 3 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 940 (1981). Although it does not appear that your jurisdiction, responsibility, influence and control extended to the entire Penndot, this issue, however, need not be addressed for the following reasons as set forth below. Turning to the term "represent" as set forth in Section 3(e) of the Ethics Act, that phrase must be qualified by the definition set forth in the Act and the legislative intendment. Person is defined in the State Ethics Act, as a "business, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons." See 65 P.S. 5402. However, in this case where you are leaving governmental employment (PennDot) and assuming a new position with another governmental entity (Pennsylvania Turnpike Commission), the question is whether the same restrictions as to "representation" would be applicable. In this respect, the Commission has previously issued opinions which indicate that the legislative intent was to prohibit the representation of persons in circumstances that may give rise to a conflict, that is, where the government employees or officials leave the public sector and enter the private sector. In two cases, Hagan, Opinion 84 -019 and Pinto, Opinion 84 -021, the Commission determined that former public employees had no restrictions on their ability to represent their new government employers or entities before the body with which they had formerly been associated. The Commission's conclusion was primarily based upon the fact that where the post - Commonwealth employment is with another governmental body or entity, the concerns the legislature sought to address through Section 3(e) of the Ethics Act were allayed or reduced because the new governmental employer could not be expected to seek to influence the governmental body, formerly served by these individuals, in the same manner as a non - governmental employer would. Therefore, the Commission concluded that the restrictions of Section 3(e) of the Ethics Act would not be applicable in such circumstances. The Commission has determined that it is permissible under Section 3(e) of the Ethics Act for an individual to transfer from one position in a branch of the Commonwealth to another position in the same branch. Cohen, Opinion 79 -045. The Commission has also determined that a transfer of a public employee from one branch of the Commonwealth service to another branch would not Mr. Frank A. Jones, Jr. March 27, 1989 Page 4 transgress the provisions of Section 3(e). See Pinto, supra; Hunt, Opinion 84 -017. In particular, the Commission determined in Lloyd, Opinion 80 -040, that a former administrative law judge of the PUC, within a year after he left that body, could participate in PUC hearings which resulted from letters, protests or by formal complaints filed by that individual or others. In applying the above rulings to your case, it must be concluded that when you left PennDot to secure new employment with the Pennsylvania Turnpike Commission, you became a "former public employee." However, for the reasons set forth in the opinions cited above, Section 3(e) of the Ethics Act would not restrict your ability to contact PennDot Personnel so as to share knowledge of mutual benefit to all concerned relative to your employment with the Pennsylvania Turnpike Commission. 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: Upon termination of your service with PennDot, you would become a "former public employee" but for the reasons set forth above, Section 3(e) of the Ethics act does not restrict your ability to "represent" the Pennsylvania Turnpike Commission regarding contacts with PennDot personnel to share knowledge of mutual benefit to PennDot and the Pennsylvania Turnpike Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as Mr. Frank A. Jones, Jr. March 27, 1989 Page 5 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 52.12. Vincent J. Dopko, General Counsel