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HomeMy WebLinkAbout89-580 ZilchDear Mr. Zilch: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 2, 1989 89 - 580 Mr. William M. Zilch 1122 Granada Lane Mechanicsburg, PA 17055 Re: Former Public Employee; Section 3(g); Civil Engineer IV; PennDot. This responds to your letter of October 5, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Law presents any restrictions upon your employment following your termination of service with the Pennsylvania Department of Transportation. Facts: You are currently employed as a Civil Engineer IV in the Pennsylvania Department of Transportation, hereinafter PennDot, Bureau of Design Contract Management Division in the Harrisburg Central Office. You supervise a section which reviews plans and proposals for highway and bridge projects which are contracted through a competitive bidding process. Included within your section is PennDot's Highway and Bridge Specifications Publication 408. As part of your duties and responsibilities you review and prepare many standard specifications and special provisions for use in projects. If you leave state service, you would become employed by a consulting engineer who designs and contracts for PennDot. The consultant would utilize you in the capacity of writing special provisions for inclusions in the contract documents. You submit a copy of your current job description and inquire as to whether such activity would be permitted under the Ethics Law. Discussion: As a Civil Engineer IV for PennDot, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non- Mr. William M. Zilch Page 2 ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of employment, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: 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. 65 P.S. §402. Initially, to answer your request the governmental body with which you were associated while working with PennDot must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 P.S. S402 Thus, the governmental body with which you been associated upon the termination of employment would be PennDot. Therefore, within the first year after termination of service with PennDot, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis PennDot. The Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on Mr. William M. Zilch Page 3 the type of employment in which a person may engage, following departure from their governmental body. 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. In respect to the one year representation the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. 65 P.S. 5402. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 P.S. 5402. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, (that is PennDot), including, but not limited to, negotiations or renegotiations in general or as to contracts with the PennDot; 2. Attempts to influence PennDot; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee. Mr. William M. Zilch Page 4 4. Participating in any matters before PennDot over which there was supervision, direct involvement, or responsibility while employed by that governmental body; 5. Lobbying, that is representing the interests of any person or employer before PennDot in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person, who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by PennDot constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by PennDot, is not prohibited as representation. You may, assist in the preparation of any documents presented to PennDot so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before PennDot. Once again, however, the activity in this respect should not be revealed to the PennDot. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of PennDot to secure information which is available to the general public. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the governmental body the representation of, or work for the new employer. Thus, Section 3(g) of the Ethics Law would not restrict your working for the consultant in writing special provisions; however, your name or the fact that you worked on the special provisions can not be revealed to PennDot as explained above. Finally, the Commission has concluded that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Mr. William M. Zilch Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDot, you would become a "former public employee" subject to the restrictions imposed by Section 3(g) of the Ethics Law. As such, your conduct should conform to the requirements of the Ethics Law as outlined above. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. VJD /emg cerely, Vincent "7. Dopko, Chief Counsel