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HomeMy WebLinkAbout89-560 MahoneyWalter H. Mahoney R.D. #2 Box 600 Farmington, PA 15437 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 24, 1989 89 -560 Re: Former Public Employee; Section 3(e), Bridge and Structural Design Supervisor, PennDOT Dear Mr. Mahoney: This responds to your letter of June 28, 1989, 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 PennDOT. Facts: You advise that you resigned your position as bridge and structural design supervisor on June 12, 1989 with the Pennsylvania Department of Transportation, hereinafter PennDOT, wherein you worked in Engineering District 12 -0 in Uniontown, Pennsylvania. You state that you were limited in your employment to the District Bridge Unit Operations and your duties consisted of the following activities: "1. Supervising and /or performing the bridge review of special hauling and posted bridge permit applications. 2. Extracting statistical bridge data from the Department's computer bridge management record system, by means of several mainframe computer reporting programs, for the purpose of project programming, record keeping and other informational reports. 3. Supervising and /or performing the field testing and evaluation of bridge deck conditions for the determination of the most cost effective scope of bridge deck work for programmed bridge rehabilitation projects. 4. Supervising and /or performing the review of bridge occupancy permit applications (utility attachments). Walter H. Mahoney Page 2 5. Miscellaneous other unit activities consisting of authorizing design projects, environmental evaluations, project cost estimating and project monitoring." After noting that you have accepted a position as a structural designer /draftsmen with the engineering fine of Sucevic, Piccolomini & Kuchar of Uniontown, you indicate that your duties with that company consist of preparing structural design and drawings and specifications for state, local and private clients. You acknowledge that both your new employer and yourself are aware that your name or credentials cannot be used in any matter when seeking engineering work with a state agency nor can you represent a new employer at meetings for a period of one year. You conclude by requesting an Opinion as to the restrictions that the Ethics Act may impose upon you. You have submitted a photocopy of your job description which details your duties and responsibilities in the Design Bureau of the Uniontown Office, hereinafter the Bureau. The job description reflects that you are a supervisor over all activities of the staff of designers and draftsmen relative to the performance of assigned projects. In particular, your duties and responsibilities are as follows: Providing supervisory guidance to staff; developing staff expertise and qualifications through distributing and interpreting technical information; supervising the design and plan preparation of various structural design projects; coordinating with outside agencies and other PennDOT Offices; reviewing structural plans and specifications submitted by engineering consulting firms; reviewing bridge designs for municipal projects; reviewing shop drawings to assure complaints with standards; reviewing special hauling permits; reviewing and processing bridge occupancy permits; providing technical assistance to other district units and preforming such other duties and responsibilities as are necessary for your position. Discussion: As a bridge and structural design supervisor 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. 5402; 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: Walter H. Mahoney Page 3 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. S403. Initially, to answer your request the "governmental body" with which you were associated while working for 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 Rury 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 Design Bureau in the Uniontown Office, hereafter, the Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau. 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 Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau. 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: Walter H. Mahoney 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 Bureau), including, but not limited to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau over which you had p s s up D e�rvision, direct involvement, or responsibility while employed by 4. Lobbying, that is representing the interests of any person or employer before the Bureau in relation to legislation, regulations, etc. See Russell, 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 the Bureau, 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 Bureau, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau to secure information which is Walter H. Mahoney Page 5 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 Bureau 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. S403(b). Parenthetically, it is noted in your job description that you provide technical assistance to other district units. Since you have not delineated to what extent there has been any contact with other district units, you may request additional advice of this Commission if the situation occurred that your jurisdiction, responsibility, influence, and control extended to other district units. 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 bridge and structural design supervisor, 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 Bureau. 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 Walter B. Mahoney Page 6 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, { 1 brey,k+ °12/14) Vincen J. Dopko Chief Counsel