Loading...
HomeMy WebLinkAbout84-593 BorichevskyMr. Serge V. Borichevsky 190 Woodhaven Drive Mt. Labanon, PA 15228 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 20, 1984 ADVICE OF COUNSEL 84 -593 RE: Civil Engineer IV, Department of Transportation, Public Employee Dear Mr. Borichevsky: This responds to your letter of June 22, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether there are any conditions or restrictions upon your activity as a former public employee and you ask whether you are "bound by any provisions of the State Ethics Act ". Facts: You indicate that you are employed by the Pennsylvania Department of Transportation between 1967 and April 6, 1984. As of this later date you were employed as a Civil Engineer IV in the Construction Division in the Project Inspection Headquarters of the Pennsylvania Department of Transportation, hereinafter, PennDot. During your tenure with PennDot, during the years of 1979, 1980, 1982 and 1983 you filed a Statement of Financial Interests, according to the records which we have been provided with and in accordance with the provisions of the State Ethics Act. However, you contend that at the time you joined PennDot, there were no conditions of employment restricting the type of work you could perform after resigning from PennDot. Now, you indicate that it is your understanding that the State Ethics Act prohibits certain former state employees from performing certain work in association with Commonwealth contracts. Your specific inquiry involves the question of whether you are "bound by any provisions of the State Ethics Act" and whether or not you have any restrictions upon your activity following your termination of employment with PennDot. Specifically, you indicate that you did not waive any of your rights to conduct such post employment work when you began your employment with n Page 2 PennDot and it seems reasonable to you to assume that any act retroactively restricting an individual's rights is prohibited by Article I, Section 9 of the "Constitution ". You are also of the opinion that you are not one of the employees covered by the provisions of the Ethics Act relating to and restricting post employment activities. Discussion: We have received and reviewed your job description and the classifications specifications for your position as a Civil Engineer IV in the Contruction Division within PennDot. Based upon our review of these classifications specifications and your job description and given the fact that you have been considered to be a "public employee" by virtue of the decisions made by the Bureau of Personnel of PennDot and the fact that you have not appealed from these rulings for the years during which you filed Statements of Financial Interests pursuant to those rulings, we must conclude that while you are employed by PennDot, you were to be considered a "public employee" within the definitions of those terms in the Ethics Act and the regulations of the State Ethics Commission. See Section 2 of the Ethics Act, definitions, 65 P.S. 402 and the regulations of the State Ethics Commission, 51 Pa. Code 1.1. We should also note that 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 III, serving in the Design Liaison Unit in Pittsburgh is a "public employee ". See Childs, 83 -502. Finally, we have ruled that a Civil Engineer IV serving in the Division of Location, Liaison and Planning in District 6 -0 is to be considered a "former public employee" upon his termination of service with PennDot. See DeNadia, 84 -587. Consequently, because you were a "public employee" while you were employed with PennDot, upon termination of your state employment on April 6, 1984, you became a "former public employee" and as such you are subject to the provisions of Section 3(e) of the Ethics Act which provide: 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, before proceeding to answer your question more fully, we should indicate that it is not within the scope of this advice nor within the jurisdiction of the Commission, in general, to declare any provision of the State Ethics Act unconstitutional. It is our duty and responsibility to enforce the provisions of the State Ethics Act as they are written. Mr. Serge V. Borichevsky July 20, 1984 Page 3 Moving to answer your question as to what restrictions you might face as a former public employee we must must initially 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 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" during his tenure of public employment extends to those entities were he had influence, responsibility, supervision or control. From your job description and based upon the facts outlined above, your jurisdiction and responsibility, influence and control appear to have been limited to the Engineering District in which you served, that is District 11 -0 within PennDot. You do not appear to have had any state -wide jurisdiction or jurisdiction beyond the boundaries of District 11 -0. Thus, the "governmental body" with which you must be deemed to have been associated is District 11 -0, PennDot. Therefore, the one year restriction outlined in in Section 3(e) applies to your "representation" of persons or new employers before District 11 -0 of PennDot. It should be noted that the Ethics Act does not restrict your ability to appear before agencies, districts, or entities other than District 11 -0. Likewise, there is no general restriction against your seeking and securing employment following your termination of employment with PennDot. You may not however, "represent" any new employer before District 11 -0 as described more fully below for the first year after leaving PennDot. The 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. Opinions of the Commission have also interpreted the term "representation" as used in Section 3(e) to prohibit the following activity: 1. Personal appearances before the governmental body with which you were associated, that is, District 11 -0, hereinafter, the District, including but not limited to negotiations or renegotiations on contracts with that District; 2. Attempts to influence that District; Mr. Serge V. Borichevsky July 20, 1984 Page 4 3. Participating in any matters 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; 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 documents as preparer 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 are equivalent to appearing or representing a person and have been held to constitute an attempt to influence your former governmental body, that is the District. Such activity is, therefore, prohibited for the first year after you leave PennDot. See Kilareski, 80 -054. 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. Conclusion: As a Civil Engineer IV, 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 Mr. Serge V. Borichevsky July 20, 1984 Page 5 requirements of the Ethics Act as outlined above. Your questions concerning the constitutionality of the application of the Ethics Act under these facts are not within the scope of our review. 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, a Sandra S. Christianson General Counsel cc: Thomas D. Larson, Secretary, PennDot Bruce Doman, Inspector General, PennDot Sharon S. Wright, Director, Personnel, PennDot