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HomeMy WebLinkAbout84-592 CollinsThomas J. Collins, Jr. 500 Grandview Street Clarks Summit, PA 18411 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 July 20, 1984 ADVICE OF COUNSEL Re: Former Public Employee; Section 3(e); District Engineer Dear Mr. Collins: 84 -592 This responds to your letter of June 19, 1984, in which you requested advice from the State Ethics Commission. Issue: As of July 11, 1984, you will have retired from the Pennsylvania Department of Transportation and you have requested advice as to whether your former employment as a District Engineer would impose any restrictions on your post - employment activities. Facts: You indicate that as of July 11, 1984, you intend to terminate your employment with the Pennsylvania Department of Transportation, hereinafter, PennDot. You have enclosed a job description with your request for Advice which is incorporated herein by reference. You indicate that all your employment with PennDot has been as a District Engineer in Engineering District 4 -0. District 4 -0 is responsible for the activities in Lackawanna, Luzerne, Pike, Susquehanna, Wayne and Wyoming Counties. Both your job description and the information contained in your letter of request indicate that the District Engineer is responsible for all highway operations within the District. This includes highway design, bridge design, dealing with utility companies, right -of -way acquisition, surveys, construction inspections, issuance of permits to the public, road -side development, traffic operations, including speed limits, line painting and traffic signals, and maintenance of the roadway and equipment in this six- county area. In addition, your job description indicates that in your position you are responsible for all programming, budgeting, personnel assignments, material acquisitions, equipment transfers, and equipment maintenance activities. Thomas J. Collins, Jr. July 20, 1984 Page 2 In addition, the District Engineer is typically a member of the Consultant Selection Committee which selects consultants to perform work for PennDot. Typically, the District Engineer is a member of this Consultant Selection Committee, hereinafter, the Committee, when a project in his or her District are to be considered by the Committee. You are interested in discerning what limitations would be placed upon your activities, in general and with - specific reference to your activities for clients that may be using funds directly or indirectly furnished by PennDot. For example, you indicate that many local municipalities select engineers for projects that are funded by PennDot. You ask for our opinion as to any limitations on your activities for clients who may be using funds administered or monitored by PennDot. Discussion: As a District Engineer within District 4 -0, you were to be considered a "public employee" within the definition of that term contained in the Ethics Act and the regulations of the Ethics Commission. See Section 2 of the Ethics Act, 65 P.S. 402 and 51 Pa. Code 1.1. This conclusion is based upon your job description which indicates that you clearly had the power to take or recommend official action with regard to several of the categories (1) -(5) as set forth in the definition of "public employee" in the Ethics Act. Thus, for purposes of this response, we will assume that you were a "public employee" during your tenure with PennDot. Consequently, upon termination of your employment with PennDot on July 11, 1984, you will have become a "former public employee" subject to the provisions of Section 3(e) 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 question, we must identify the "governmental body" with which you were associated while working with PennDot. Then, we may proceed to review the scope of the prohibitions associated with the concept and term "representation ". In answering these questions, the Ethics Commission has previously ruled that the "governmental body" with which an individual must be deemed to have been "associated with" during his tenure of public employment extends to those entities were he had influence, responsibility, supervision or control. After reviewing the scope of your roll with PennDot, we conclude that the "governmental body" with which you must be deemed to have been associated while employed by PennDot is District 4 -0. Therefore, the one -year restriction as outlined in Section 3(e) applies Thomas J. Collins, Jr. July 20, 1984 Page 3 generally to your "representation" of persons or new employers before District 4 -0. We must address the question of your service with the Consultant Selection Committee, hereinafter, the Committee . We have generally reviewed the status of this Committee in our advice Baran, 82 -501. Also, in general, the Commission has extended the concept of g veoveo rnmental body" with which an individual has been associated to entities upon which an individual serves as an ex officio member. See Seltzer, 80 -044 and Anderson, 83 -014. However, we understand that your service on the Committee was only an ocassional one when the projects of District 4 -0 were involved or reviewed by this Committee. As such, you did not serve on this Committee in the same category as those individuals who may serve on a permanent basis as members of this Committee or who are appointed to this Committee as a result of their official positions within state government. Thus, we do not believe that as a general matter you should be deemed to be a "associated with" the Committee or that you would face any restrictions vis -a -vis the Committee for the first year after the termination of your employment with PennDot. Accordingly, we maintain as set forth above, that any restrictions outlined in Section 3(e) of the Ethics Act would apply to your "representation" of persons only vis -a -vis District 4 -0. Also, the Ethics Act does not generally affect your ability to appear before agencies, districts, or entities other than District 4 -0. Likewise, there is no general restriction against your seeking and securing employment following your retirement with PennDot. There is no general restriction against your being employed by local municipalities which may use funds directly or indirectly furnished by PennDot so long as, in your representation of such clients you do not engage in any of the prohibited activities known as "representation" before District 4 -0 as will be described more fully below for the first year after leaving PennDot. With respect to the exact nature of the term "representation ", the Ethics Commission has promulgated regulations to define the term of "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 Opinions of the Commission have also interpreted the term "representation" as used in Section 3(e) to prohibit the following activity: Thomas J. Collins, Jr. July 20, 1984 Page i 1. Personal appearances before the governmental body with which you were associated by PennDot, that is, District 4 -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 manner - before the 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, employer or client 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 constitutes an attempt to influence your former governmental body. 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 a preparer or as the person who will provide technical assistance on items which will be presented to the District or reviewed by the District. The Commission, however, has stated that the inclusion of your name as an employee on a pricing proposal" even if submitted to or reviewed by the District is not to be prohibited as "representation ". See Kotalik, 84 -007. You may, even under the above referenced restrictions, assist in the preparation of any documents presented to the District by any client or new employer and assist in the preparation associated with an appearance to be made by a person other than yourself before the District so long as you are not identified on the documents 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 District 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 even within the first year after you leave your employment with PennDot. This would be true even if your administration of such a contract involved dealing with personnel of the District or personnel within PennDot generally. See Dalton, 80 -056 and Beaser, 81 -538 and DeNadia, 84 -587. Thomas J. Collins, Jr. July 20, 1984 Page 5 Conclusion: As a District Engineer, you were a "public employee" as defined in the Ethics Act. Upon your termination of employment with PennDot, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of 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 in_which you hold the position described above, and for the year following your termination of such service. Thus, in addition to the Statement which you probably have already filed by May 1, 1984, you must file a Statement of Financial Interests no later than May 1, 1985. This represents the filing required for the year following your termination of service with PennDot and should record information for the calendar year 1984. 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 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 Sincerely, cc: Thomas D. Larson, Secretary, PennDot Bruce Doman, Inspector General, PennDot Sharon S. Wright, Director, Personnel, PennDot Sandra 1 ristianson General Counsel