HomeMy WebLinkAbout89-569 PopovichMr. Richard D. Popovich 89 -569
120 Bluejay Drive
Canonsburg, PA 15317
Re: Former Public Employee; Section 3(g); Opinion 89 -005;
Supplemental Advice; Penn Dot; EDP Coordinator.
Dear Mr. Popovich:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
September 25, 1989
This responds to your letter of August 11, 1989, in which
you requested additional advice from the State Ethics Commission.
Issue: Whether the Ethics Law imposes any prohibition or
restrictions upon a former public employee of PennDot relative to
two contracts which were negotiated prior to but executed after
the termination of his employment.
Facts: After noting that the Commission issued Popovich, Opinion
89 -005 on August 8, 1989 relative to the limitations imposed by
Section 3(g) of the Ethics Law as to the governmental body with
which you were associated, Penn Dot, you advise that your
current employer Triline Associates Inc. is presently a
subcontractor on two PennDot projects. Triline Associates, Inc.
and the Center for Hazardous Materials Research (CHMR) were
selected on April 6, 1989 to develop a departmental waste
management strategy, Reference No. 08437EQ8901. That contract
was signed by CHMR on July 28, 1989 and by PennDot on August 2,
1989. In addition, GAI and Triline Associates, Inc. were
selected on June 7, 1989 to act as Environmental and Community
Coordinators on a Section 15 of the Airport Southern Expressway,
Reference No. 08430AG1055. That contract was executed on August
4, 1989. Dr. Rodger Carrier who is president of Triline
Associates, Inc. wrote a letter dated August 8, 1989 to PennDot
requesting the addition of your name to the waste management
contract. Dr. Carrier intends to take the same action as to the
environmental coordination contract. You conclude by requesting
advice as to the limitations the Ethics Law would impose upon you
as to these two projects as well as any limitations regarding
telephone contacts between yourself and PennDot.
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Discussion: In Popovich, supra, which is incorporated here by
reference, the Commission found that you as an EDP Coordinator
for PennDot were a public employee as that term is defined under
the Public Official and Employee Ethics Law. In addition it was
determined that upon termination of your service with PennDot on
July 17, 1989, you became a former public employee subject to
the provisions of Section 3(g) of the Ethics Law which provides:
Section 3. Restricted activities.
(g) No former public official or public
employee shall represent a person, with
promised or actual compensation, on any
matter before the governmental body with
which he has been associated for one year
after he leaves that body.
The Commission in Popovich, supra determined that the
governmental body with which you were associated was PennDot.
The Commission then detailed the restrictions which would be
imposed upon you regarding representation of your new employer
before your former governmental body PennDot. Those restrictions
which are detailed in the Opinion may be summarized as follows:
personal appearances before PennDot which would include
negotiations as to contracts, attempts to influence PennDot,
submission of bid or contract proposals containing your name,
participating in matters before PennDot, lobbying and certain
other activities. The Commission did determine that the
administering of an existing contract as opposed to negotiating
or negotiating a contract would not be prohibited by Section 3(g)
of the Ethics Law.
In applying the above enunciated principles it is necessary
to determine whether the two contracts in question were
effectuated prior to or after your departure from PennDot. The
exclusion regarding representation of existing contracts applies
to only those contracts which were effectuated prior to the time
of departure of the public official /employee. In this case,
although you terminated your service on July 17, 1989, both of
the Triline Associates, Inc. contracts in question were not
effectuated until August of 1989. Therefore, they are not
existing contracts and consequently Section 3(g) of the Ethics
Act would restrict you in terms of representing Triline
Associates Inc. as to those two contracts.
Turning to the matter of what telephone contacts would be
permitted between you and PennDot, you would not be precluded
from seeking general information or inquiries from PennDot to
secure that which is available to the general public. See
Popovich, supra. However, any telephone inquiries beyond those
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of seeking general informational inquiries available to the
general public would be precluded because in that case you would
be engaging in activities which would be related to specific
representation of your new employer Triline Associates, Inc.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
Conclusion: As an EDP Coordinator for PennDot you were a public
employee and became a former public employee upon termination of
your service. In Popovich, Opinion 89 -005 it was determined that
the governmental body with which you were associated with was
PennDot and you were advised that you could not have any personal
appearances before your former governmental body including
negotiating contracts, attempting to influence PennDot or
submitting 'bid or contract proposals which contain your name,
participating in matters or lobbying before that governmental
body. As to your supplemental advice request, Section 3(g) of
the Ethics Act would restrict your representation of Triline
Associates, Inc. as to contracts which were effectuated after you
terminated public service because the contracts were not
preexisting. Section 3(g) of the Ethics Law would limit your
telephone contacts to PennDot to only those inquiries of a
general informational nature available to the general public.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
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 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.
incerely,
Vincent 'r. Dopko,
Chief Counsel