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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