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HomeMy WebLinkAbout84-523 ReeseMurray J. Reese 1135 Mississippi Avenue Pittsburgh, PA 15216 Dear Mr. Reese: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 10, 1984 ADVICE OF COUNSEL RE: Former Employee, Section 3(e) Restricted Activities 84 -523 This responds to your letter of January 13, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your activity as a former employee of the Pennsylvania Department of Transportation, hereinafter, the Department. Facts: You indicate that you retired from the Department on July 27, 1983, after 21 1/2 years service with the Department. During that tenure you worked in various capacities, including that of a real estate specialist. During your tenure with the Department you complied with all financial interest requirements and disclosure provisions as an employee of the Department, and we assumed, that this includes the filing of a Financial Interest Statement under the State Ethics Act. You have provided us with your job description which is incorporated herein by reference, which indicates that you worked as a real estate specialist supervisor within the Services Division (Right -of -Way) of the Department of Transportation. We also have access to and incorporated herein by refence the classification specification for a Real Estate Specialist Supervisor under which you operated in your last capacity with the Department. You indicate that you recently received an inquiry from O. R. Collins Associates as to whether you would be available to work with this entity in acquiring right -of -way authorizations in Allegheny and Beaver County areas. You indicate that O. R. Collins Associates, hereinafter, Collins, intends to enter into a contract with the Department to undertake services for the Department. In a previous Advice issued to Taylor, 84 -500, we were advised and we assume that these facts are applicable here, that Collins has already submitted a proposal (without your name being included thereon) to PennDot to State Ethics Commission A 308 Finance Building • Harrisburg, Pennsylvania Murray J. Reese February 10, 1984 Page 2 perform this service for PennDot. A contract between PennDot and Collins is expected to be executed in mid - January. Collins would, pursuant to this contract, undertake to operate as a broker for the Department to buy real estate which might be subject to condemnation proceedings and Collins would be involved in relocation of individuals whose property has been subject to eminent domain or condemnation proceedings buy the Department. We also assume, in respect to this response, that you would not be involved as a member of management of Collins but would basically be serving with Collins as a real estate agent in purchasing of property and assisting in the relocation of the occupants of homes or properties as may have been displaced by highway construction or relocations. Discussion: We will assume, for purposes of this Advice, that you were to be considered a "public employee" during your tenure with the Department. Therefore, upon termination of such service with the Department, you did become a "former public employee" as of July 27, 1983. As a "former public employee" your conduct must conform to the requirements of Section 3(e) of the Ethics Act as set forth below: (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. 403(e). As a former public employee you must, for the first calendar year following your termination of employment with the Department (July 27, 1983 to July 27, 1984), refrain from representation as the Commission has further defined that term vis -a -vis those governmental bodies with which you may have been associated while employed by the Department. We must, however, review your request by asking the questions: 1. What is the scope of the term an activity known as "representation ?" 2. To which governmental bodies do the restrictions and prohibitions against representation extend in your case? We will address this latter question first. While it is unclear whether your responsibility as a real estate specialist- supervisor was limited to a particular district or extended throughout the Department. We understand your basic question to be one associated primarily with the work you seek to do with Collins. Specifically, we will answer the narrow question of whether you may participate as a real estate agent for Collins and provide additional or broad -base response only if requested. Murray J. Reese February 10, 1984 Page 3 With respect to whether the Ethics Act precludes you from operating as a real estate agent with Collins, you are advised that the Ethics Act would not prohibit you from being employed as an agent for Collins as such. However, within the one -year following your termination of employment with the Department. You must observe those restrictions set forth in Section 3(e) with respect to at least the district office with which you were associated. You would not be precluded from "representation" such as working with or making submissions to state agencies, other than the district office with which you were associated for the one -year following your termination of employment with the Department. Additionally, the Ethics Commission has determined that the prohibited activity defined "representation" in Section 3(e) extends to such activities as: 1. personal appearances before the governmental body with which you were associated, including but not limited to negotiations or re- negotiation of contracts; 2. attempts to influence the governmental body with which you were associated; 3. participation in any manner before the governmental body with which you were associated in any case or matter over which you had supervision, direct involvement, or responsibility while employed with the Department; and, 4. lobbying, that is representing the interest of any person before the governmental body with which you were associated in relation to legislation, regulations, etc. It should be noted that the mere act of preparing and signing with your own name or having your name appear as the person who will serve in regard to a proposal (such as technical advisor on the proposal) has been held to constitute an attempt to influence your former governmental body should such a proposal be presented to or reviewed by that body. Therefore, such activity is prohibited. See Kilareski, 80 -054. This is because the inclusion of your name as preparer or technical advisor on such a proposal to be submitted to the district office with which you are assoicated has the potential for influencing the decision of the district and, therefore, is prohibited for the one -year period after you leave your state employment. Also, where you know or should know that a submission or proposal that you might make to an entity other than the district office with which you are associated might be reviewed by that district office, your name should not appear on such a proposal. Anderson, 83 -014. Murray J. Reese February 10, 1984 Page 4 While the above- referenced restrictions apply to you for the one -year period following your termination of service with the Department, you may, nevertheless, work for an employer such as Collins and may, within the one -year period following your termination of service, engage in the following activities: A. You may administer rather than negotiate or re- negotiate any contract that exist or that is to be awarded to your future employer so long as the contract or sub - contract is or was awarded or entered into without the inclusion of your name as noted above. B. You may make general informational inquiries of the district office with which you are associated for PennDot in general, as long as there is no attempt to influence the district office with which you are associated as prohibited above. C. You may utilize the knowledge and expertise gained during your tenure as a public employee so long as you do not use any confidential information gained during your service as a public employee. D. You may appear and represent any person on behalf of any client or new employer before any entity or governmental body except the district office with which you have been associated as outlined above. Basically, your employment with Collins is not prohibited by the Ethics Act or restricted per se except that you must observe the restrictions on your activities vis -a -vis the district office with which you have been associated as outlined in Numbers 1 through 5 above. Conclusion: Upon your termination of service with the Commonwealth, you will have become a "former public employee" subject to the restrictions imposed by the State Ethics Act in Section 3(e) thereof. Your conduct as a former public employee must conform to the requirements of the Act as described in this Advice and you should take note of the prohibited and allowable activities as discussed above. As a former public employee you must also file a Financial Interest Statement for each year that your held the position described above and for the year following your termination of service. Thus, a Statement of Financial Interest should be filed no later than May 1, 1984, which represents the filing required for the year following your termination of service. This financial disclosure will record information for the calendar year 1983. Murray J. Reese February 10, 1984 Page 5 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp cc: Bruce Doman Thomas Larson Mike Finio Ken Bausinger Sincerely, - Sandra S. Christianson General Counsel F�j