HomeMy WebLinkAbout84-587 DeNadiaMr. Ronald S. DeNadia
214 Walnut Hill Road
West Chester, PA 19382
Re: Former Public Employee; Section 3(e); Civil Engineer IV
Dear Mr. DeNadia:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
July 10, 1984
ADVICE OF COUNSEL
84 -587
This responds to your letter of April 16, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You recently retired from the Pennsylvania Department of
Transportation and have requested advice as to whether your former employment
as a Civil Engineer IV would classify you as a "former public employee" and if
so, what restrictions would be placed upon you by the Ethics Act.
Facts: You retired from the Pennsylvania Department of Transportation,
hereinafter PennDot, on February 8, 1984. At that time, you were employed as
a Civil Engineer IV, Division of Location, Liaison and Planning in District
6 -0.
According to your job description, incorporated herein by reference, some
of your duties included managing, coordinating and reviewing final design work
performed by consultants under contract with PennDot, participating in
consultant fee negotiations, plan checking, right -of -way negotiations, and
follow -up problems encountered in contruction. You were responsible for
project scheduling, review of consultant invoices, and insuring that design
projects were in conformity to all laws and current departmental policies.
Your job description, dated October 25, 1983, indicated that you "presently
(had) twenty -two (22) projects that have a (sic) estimated construction cost
of $294,000,000." In addition, you represented PennDot at meetings relative
to transportation studies, coordination and review by the central office and
the FHWA. You also conduct public hearings, meetings with involved municipal
officials and affected citizens, and you presented Department projects to
civic groups. You also served as Supervisor of the Planning, Programming and
PMS Unit which coordinates the Department's long -range plans with regional,
public and private agencies.
Mr. Ronald S. De Nadia
July 10, 1984
Page 2
You would like to know whether, as a Civil Engineer IV, you were to be
considered a "public employee" and if so, whether you are now to be considered
a "former public employee ". You would like to know what, if any, restrictions
are placed upon you by the Ethics Act if you are in fact found to be a "former
public employee ".
Discussion: As a Civil Engineer IV for PennDot, you were a "public employee"
within the definition of that term as defined in the Ethics Act. See Sections
402, Definitions. This conclusion is based upon your job description, which
when reviewed an objective basis indicates clearly you had the power to take
or recommend official action of a non - ministerial nature with respect to
contracting, procurement, planning, inspecting and other activities where the
economic impact was greater than diminimus on the interests of another
person. Also we have previously ruled that a Civil Engineer II serving in the
Design Division is a public employee. See Majeed, 80 -14A. Similarly, we
ruled that a Civil Engineer III, serving in the Design Liaison Unit in
Pittsburgh is a public employee. See Childs, 83 -502.
Consequently, upon termination of your State employment on February 8,
1984, you became a "former public employee" subject to the provisions of
Section 3(e) of the Ethics Act, which provides:
Section 3. Restricted activities.
(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, to answer your request we must identify the "governmental
body" with which you were associated while working with PennDot and then we
must review the scope of the prohibitions associated with the term
"representation ". In this context, the Ethics Commission has previously ruled
that 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 appear to have been
limited to the District 6 -0 of PennDot. You do not appear to have had any
state -wide jurisdiction or jurisdiction beyond the boundaries of District 6 -0.
Thus, the "governmental body" with which you must be deemed to have been
associated is the District 6 -0, PennDot. Therefore, the one year restriction
outlined in Section 3(e) applies to your "representation" of persons or new
employers before District 6 -0 of PennDot.
Mr. Ronald S. DeNadi a
July 10, 1984
Page 3
The Ethics Act does not affect your ability to appear before agencies,
districts, or entities other than District 6 -0. Likewise, there is no general
restriction against your seeking and securing employment following your
retirement from PennDot. You may not, however, "represent" any new employer
before 6 -0 as described more fully below for the first year after leaving
PennDot.
The Ethics Commission has promulgated regulations to define
representation, See 51 Pa. Code 1.1, and has interpreted the term
"representation" as used in Section 3(e) to prohibit:
1. personal appearances before the governmental body with which you are
associated, that is, District 6 -0, hereinafter, the District including but not
limited to negotiations or renegotiations on contracts with that District;
2. attempts to influence that District;
3. participating in any matters before that District 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 or
employer before the District 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 act of preparing and signing
as preparer or "appearing" by having your name listed as the person who will
provide technical assistance on a proposal, document, or bid, to be submitted
to or reviewed by the District has been held to constitute an attempt to
influence your former governmental body, that is, the District See Kilareski,
80 -054. Therefore, within the first year after you leave PennDot, 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 on those
documents, proposals, bids, etc., which will be presented to the District or
which will be reviewed by the District. The Commission has, however, stated
that the inclusion of your name as a mere employee on a "pricing proposal"
even if submitted to or reviewed by the District is not prohibited as
"representation ". Kotali k, 84 -007.
You may, even under the above referenced restrictions, assist in the
preparation of any documents presented to the District and assist in the
preparation associated with appearances to be made by another person or
individual before the District 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 the District to secure
information which is available to the general public. Cutt, 79 -023.
Mr. Ronal d S. DeNadi a
July 10, 1984
Page 4
Likewise, the Commission has concluded that if you are administering an
existing contract, as apposed to negotiating or renegotiating a contract, your
activities would not be prohibited by the Ethics Act. This would be true even
if your administration of a contract involved dealing with personnel of the
District or personnel within PeunDot generally. Dalton, 80 -056 and Beaser,
81 -538.
Conclusion: As a Civil Engineer IV you were a public employee as defined in
the Ethics Act. Upon your retirement from service with PennDot as a Civil
Engineer IV you became 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.
Further, as a former public employee you must file a Statement of
Financial Interests for each year that you held the position described above,
and for the year following your termination of service. Thus, e. Statement of
Financial Interests should be filed no later than May 1, 1985, which
represents the filing required for the year following your termination of
service. This Statement of Financial Interests w record information for
the calander year 1984.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceedi ng initiated by the Commi ssion, 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 full 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.
Enclosure: SFI
SSC /na
Sandra S. Christianson
General Counsel
cc: Thomas D. Larson, Secretary, PennDot
Bruce Doman, Inspector General, PennDot
Sharon S. Wright, Director, Personnel, PennDot