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HomeMy WebLinkAbout84-591 VorceSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 20, 1984 ADVICE OF COUNSEL Kenneth E. Vorce, P.E. P.O. Box 192 Harrisburg, PA 17108 RE: Former Public Employee; Section 3(e), Civil Engineer III Dear Mr. Vorce: 84 -591 This responds to your letter of June 11, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Commonwealth, should such occur. Facts: You indicate that you are presently employed by the Pennsylvania Department of Transportation, hereinafter, PennDot, as a Civil Engineer III. You served with the Bureau of Maintenance and Operations, hereinafter the Bureau, in the Traffic Engineering and Operations Division. As such you are stationed in the Harrisburg Headquarters Office of PennDot. You indicate that you are contemplating resigning your position to begin a personal consultant business. You indicate that your future employment as a personal consultant may involve the following activities: a. providing traffic engineering expertise to local jurisdictions on a retainer basis and /or conducting individual transportation- related studies for municipalities on a contract by contract basis. b. providing technical services to metropolitan planning organizations and private engineering firms. This activity would involve work on potential projects developed for state - administered safety and traffic flow programs. Kenneth E. Vorce, P.E. July 20, 1984 Page 2 c. providing traffic engineering expertise to private corporations, for example, developers, shopping center owners, for ingress- egress control and parking lot design. d. providing technical services as a sub - consultant to research institutes and organizations. You have also indicated that whale employed by PennDot you were responsible for reviewing safety and traffic flow studies which are developed to justify potential federally aided highway projects. In this capacity, you were required to make a determination as to the project's technical validity, that is, whether the project is in conformance with the PennDot program criteria and adequately addresses the associated traffic problems. These studies are conducted by PennDot's engineering districts, private consulting firms and metropolitan planning organizations. In addition to the information which you provided, we have obtained and incorporate herein by reference your job description which you signed on January 26, 1984, and the classification specifications for the position of a Civil Engineer III. Additionally, we have reviewed the organizational chart of PennDot as published in the Saturday, April 14, 1984 edition of the Pennsylvania Bulletin at page 1296. These items indicate that as a Civil Engineer III in the Traffic Engineering and Operations Division of the Bureau of Maintenance and Operations, you were supervised by the Chief Engineer for Highway Administration who in turn reported to the Deputy Secretary for Highway Administration. Finally, your job description indicates that you are responsible for arranging and conducting meetings and field reviews between the FHWA, municipal planning organizations, municipal offices and officials and district office personnel in order to coordinate and monitor the work of municipal planning organizations, consultant and district personnel in accomplishing the goals of PennDot. In this capacity you are deemed to have been responsible for reviewing safety and traffic flow studies that were conducted by the Department's engineering districts throughout the state and you provided assistance to the various district office personnel in program and traffic computer simulations. It should be noted that you began your employment with PennDot in 1971 and as a result, you have become personally familiar with many people within PennDot, including personnel within the central and the district offices. You have, in the course of your tenure with PennDot, developed a working relationship with the district offices and the personnel within these offices. Discussion: As a Civil Engineer III for PennDot, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. See Section 2 of the Ethics Act, 65 P.S. 402 and the regulations of the Commission set forth at 51 Kenneth E. Vorce, P.E. July 20, 1984 Page 3 Pa. Code 1.1. See also DeNadia, 84 -587. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. Also, we have previously ruled that a Civil Engineer II serving in the Design Division of PennDot is a public employee. See Majeed, 80 -14A. Similarly, we have ruled that a Civil Engineer I1I serving in the Design Liaison Unit in Pittsburgh is a public employee. See Childs, 83 -502. Thus, there is no reason to arrive at a different cone uT sion with respect to your position as a Civil Engeneer IV. Consequently, if you were to terminate your state employment you would become a "former public employee" subject to the provisions of the Ethics Act. Section 3(e) of the Ethics Act provides that: 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. Initially, to answer your request we must identify the "governmental body" with which you were associated while working with PennDot. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public employment extends, not to those entities where he may have had contact or acquired acquaintances and colleagues, but only to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). In Kury, the Court addressed the question of whether or not the fact that a former Senator had "dealt with" the Public Utility Commission during his tenure in the Senate would preclude him from appearing and representing persons before the Public Utility Commission within the first year after he left the Senate. The Court concluded that the mere fact that the Senator had "dealt with" the Public Utility Commission was insufficient to support a conclusion that the Senator had been "associated" with that body. Thus, in your case, the mere fact that you have been responsible for meeting with personnel within the District Offices does not necessarily, in and of itself, persuade us that you were associated with the district offices throughout the state. Kenneth E. Vorce, P.E. July 20, 1984 Page 4 Rather, from your job description and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the Bureau of Maintanence and Operations and the Division of Traffic Engineering and Operations. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment with PennDot would be the Bureau of Maintainence and Operations, hereinafter, the Bureau, and the Traffic Engineering and Operations Division of the Bureau, hereinafter, the Division. Therefore, within the first year after you would leave PennDot, Section 3(e) of the Ethics Act would apply and restrict your activity of "representation" of persons or new employers vis -a -vis the Bureau and the Division. The Ethics Act would not affect your ability to appear before agencies, districts, or entities within PennDot or outside of PennDot other than with respect to the Bureau and the Division. Likewise, there is no general restriction against your seeking and engaging in private consulting work or supplying services to clients in general following your retirement from PennDot. You may not, however, "represent" any new employer or client before the Bureau or the Division as described more fully below for the first year after you would leave PennDot. The Ethics Commission has promulgated regulations to define representation as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental bodies with which you have been deemed to have been associated, that is the Bureau and the Division, including, but not limited to, negotiations or renegotiations on contracts with the Bureau and the Division; 2. Attempts to influence the Bureau or the Division; 3. Participating in any matters before the Bureau or the Division on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by PennDot; Kenneth E. Vorce, P.E. July 20, 1984 Page 5 4. Lobbying, that is representing the interests of any person or employer before the Bureau or the Division in relation to legislation, regulations, etc. See Russell, 80 -048; Seltzer, 80 -044; and DeNadia, supra. 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 Bureau or the Division, has been held to constitute an attempt to influence your former governmental body (the Bureau or the Division). See Kilareski, 80 -054. Therefore, within the first year after you would leave PennDot, you should not allow your name to appear on proposals, documents, or bids, either as the preparer or as the person who will provide technical assistance on these documents, proposals, bids, etc., which will be presented to the Bureau or the Division or which will be reviewed by these entities. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal ", even if submitted to or reviewed by the Bureau or the Division, is not prohibited as "representation ". See Kotalik, 84 -007. You may, even under the above restrictions, assist in the preparation of any documents presented to the Bureau or the Division and assist in the preparation associated with appearances to be made by a person other than yourself before the Bureau or the Division 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 would not prohibit or preclude you from making general informational inquiries of the Bureau or the Division to secure information which is available to the general public. See Cutt, 79 -023. Likewise, the Commission has concluded that if you are administering an existing contract as opposed 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 Bureau or the Division or personnel within PennDot generally. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a Civil Engineer III, you are to be considered a "public employee" as defined in the Ethics Act. If you terminate your service with PennDot as a Civil Engineer III, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. If this occurs, your conduct should conform to the requirements of the Ethics Act as outlined above. Kenneth. E. Vorce, P.E. July 20, 1984 Page 6 Further, should you terminate your employment with PennDot, you are reminded that the Ethics Act also requires that as a public employee you must file a Statement of Financial Interests for each year in which you hold the position described above, and for the year following your termination of service with the State. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by he 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 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. SSC /na Lr Sandra S. C ristianson General Counsel cc: Thomas D. Larson, Secretary, PennDot Bruce Doman, Inspector General, PennDot Michael A. Finio, Office of Inspector General, PennDot Sharon S. Wright, Director, Personnel, PennDot