HomeMy WebLinkAbout84-540 LeonardMr. Roy Leonard
493 N. Ben Franklin Road
Indiana, PA 15701
Dear Mr. Leonard:
STATE ETHICS COMMISSION
HARRISBURG, PA 17108 —
TELEPHONE: (717) 783 -1610
March 20, 1984
ADVICE OF COUNSEL
RE: Section 3(e); Representation; PennDot; Civil Engineer IV
84 - 540
This responds to your letter of January 10, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You are considering retiring from the Pennsylvania Department of
Transportation, and have requested advice as to any restrictions placed upon
you as a former public employee by the Ethics Act.
Facts: You are currently an assistant construction engineer with the
Pennsylvania Department of Transportation (PenDot). After 35 years of
service, you are considering taking normal retirement, and may possibly seek
employment in the heavy construction industry. Such employment may include
road and bridge construction work. You would be interested in obtaining work
as an estimator, foreman, or any position that would require engineering or
surveying skills.
As a Civil Engineer IV, you serve as a professional engineering assistant
to the district construction engineer. As such, you plan and coordinate the
work of subordinates engaged in the inspection of several projects in the
districts for compliance with contract and departmental requirements. You
provide professional guidance and assistance in resolving technical and
engineering problems, and you visit projects as required to coordinate field
design changes as well as assisting in resolving most difficult problems.
Your job description, incorporated here by reference, and the
classification specifications, also incorporated, indicate that you provide
necessary administrative and technical contracts to effect maximum utilization
of personnel and the proper documentation of personnel and workload
information. You also review field project books for the inclusion of
pertinent information, check contractor and final estimates for payment and
payrolls, and maintain project records on funds expended and percentage of job
completion.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 1112_0
Mr. Roy Leonard
March 20, 1984
Page 2
You are concerned with what restrictions may be placed upon you by the
Ethics Act should you terminate your state employment, therefore, you have
requested advice from the State Ethics Commission.
Discussion: As a Civil Engineer IV within District 10 -0 of PennDot, based
upon your job description and the classification specifications for this
position, you are a "public employee" within the definition of that term as
contained in the Ethics Act. Consequently, if you were to terminate your
state employment, you will become a "former public employee" subject to the
provisions of Section 3(e) of the Ethics Act, which provides as follows:
(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).
Initially, the question to be answered in the context of your request is
to identify the "governmental body" with which you were associated while
working with District 10 -0 of PennDot and the scope of the prohibitions
associated with the term "representation." In this context, the Ethics
Commission has previously ruled that the scope of the "governmental body" with
which an individual may have been deemed to be "associated" during his tenure
of public employment, extends to those entities where he had influence,
responsibility, supervision or control. From your job description, and based
upon the facts outlined above, your jurisdiction, responsibility, influence,
and control are limited to District 10 -0. You did not have any state -wide
jurisdiction or jurisdiction beyond the boundaries of District 10 -0. Thus,
the "governmental body" with which you must be deemed to have been associated
is District 10 -0. Therefore, the one year restriction outlined in Section
3(e) applies to your representing persons before District 10 -0. The Ethics
Act would not affect your ability to appear before agencies, districts, or
entities other than PennDot's District 10 -0. Likewise, there is no general
restriction against your seeking and securing employment following your
departure from PennDot. You may not, however, "represent" any new employer
before District 10 -0 as described more fully below, for the first year after
leaving PennDot.
The Ethics Commission has interpreted the term "representation" as that
term is used in Section 3(e) to prohibit:
Mr. Roy Leonard
March 20, 1984
Page 3
1. personal appearances before District 10 -0 including but not limited
to negotiations or re- negotiations on contracts;
2. attempts to influence that governmental body;
3. participating in any matters before District 10 -0 in any case,
matter, or contract over which you had supervision, direct
involvement, or responsibility while employed by PennDot;
4. lobbying, that is representing the interests of any person before
District 10 -0 in relation to legislation, regulations, etc. See
Russell, 80 -048 and Seltzer, 80 -044.
In light of the definitions and restrictions outlined above, the
Commission, furthermore, has held that the mere fact of preparing and signing
as a preparer or "appearing" by having your name listed as the person who will
provide technical assistance on a proposal, document, or bid, has been held to
constitute an attempt to influence your governmental body, that is, District
10 -0. See Kilareski, 80 -054. Therefore, within the first year after you
leave District 10 -0, you should not allow your name to appear on proposals,
documents, or bids, either as preparer or as the person who will provide
technical assistance in those documents, proposals, bids, etc., which will be
presented to District 10 -0. The Commission has, however, stated that that
inclusion of your name as a mere employee on a "pricing proposal" is not
prohibited as "representation." Kotalik, 84 -007.
You may, even under the above - referenced restrictions, assist in the
preparation of any documents presented to Distict 10 -0 and assist in the
preparation associated with appearances to be made by any other person or
individual before District 10 -0 so long as you are not identified as the
preparer or the person who will provide technical assistance as outlined
above. Of course, any ban under the Ethics Act does not prohibit or preclude
you from making general informational inquiries of District 10 -0 to secure
information which is available to the general public. Cutt, 79 -023.
Likewise, the Commission has concluded that if you are engaging in or
administering an existing contract, as opposed to negotiating or
re- negotiating contracts, your activities would not be prohibited by the
Ethics Act. This would be true even if your administration of a contract
involved dealing with District 10 -0 personnel or personnel within Pennflot.
Dalton, 80 -056 and Beaser, 81 -538.
Mr. Roy Leonard
March 20, 1984
Page 4
In answer to your specific questions, whether you were to be mployed as
an estimator, foreman, or engineer, you could not represent (as set forth
above) a new employer vis-a-vis District 10 -0 for the first year after you
leave Pennfot. So long as you do not engage in any such activity, you will be
in compliance with the Ethics Act and there is no absolute ban on your
acceptance of employment upon your retirement.
Conclusion: Upon your termination of service with District 10 -0, you would
become a former public employee subject to the restrictions imposed by'the
Ethics Act, and your conduct should conform to the requirements of the Ethics
Act as outlined above.
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 E. Doman, Esquire
Honorable Thomas D. Larson, Secretary
Sharon Wright, Director of Personnel
Sincerely,
Sandra S. Chr stianson
General Counsel