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HomeMy WebLinkAbout84-596 KumarA. Kumar, P.E. 45 Stonegate Road Indiana, PA 15701 Dear Mr. Kumar: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 9, 1984 ADVICE OF COUNSEL RE: Former Public Employee; Section 3(e), Civil Engineer III 84 -596 This responds to your letter of July 18, 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. As such, you served within District 10 -0, located in Indiana, Pennsylvania and were classified as a Planning and Programming Engineer within the Design Division of PennDot, District 10 -0. You also indicated that while employed by PennDot you were responsible for collecting and submitting relevant data for the update of the 12 year program to the program center; providing technical assistance to metropolitan planning organizations; coordinating the development of transportation programs with regional and county planning agencies; and provided technical assistance in helping these agencies meet their transportation needs. We have reviewed the job description applicable to your position and we incorporate that job description herein by reference. We have also reviewed the classification specifications for the position which you held while employed by PennDot. A. Kumar P.E. August 9, 1984 Page 2 You indicate that y;ur• futuee employment plans include engaging in the following activities: 1. You are interested in peo' :idi:.y professional design services to engineering consultants Some of these consultants may be currently, or ir the future, enraged by Pe;oDot.. 2. You are a.sc ioter'ested in providing design services in the area of bridge and geotechnical engineerine as an ir.eepeodent cor,tr to engineering consultants. This work involves all eepects of design wo including field- surveys, mapping and plan development. 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 Pa. Code 1.1. This conclusion is based upon your job description, which when reviewed ors 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. Consequently, if you were to terminate this employment you would become a "former public employee" subject to the 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 request we crust idertfy. the "governmental body" with which you were associated while working w th PennDot. Then, we must review the scope of the prohibitions associated with the concept and teen of "representaton". In this context, the Ethics 'om;Trissico has p :e•,'ioi:ly ruled that the "governmental body" with which an individual may be deemed to have bee's associated during his tenure of public egmployment extends, not to those en where he may have had contact or ac acquaintances and colleagues, but only to those entities wh re he had ir„. ucnce, responsibility, supervision, or control See Ewing, 79 - 010. See 41 so Ku :y vs. Com:onweal th of Pennoylvania, State Ethics Commission., 435 A,2d 940 (1.981T7- A. Kumar P.E. August 9, 1984 Page 3 From your job description and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to District 10 -0 of PennDot. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment with PennDot would the District 10 -0, hereinafter, the District. 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 District. 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 District. Likewise, there is no general restriction against your seeking employment or engaging in private consulting work or supplying services to clients or employers, in general, following your retirement from PennDot. You may not, however, "represent" any new employer or client before the District 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 District, including, but not limited to, negotiations or renegotiations on contracts with the District; 2. Attempts to influence the District; 3. Participating in any matters before the District on 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. A. Kumar P.E. August 9, 1984 Page 4 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 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 District or •v: ich will be reviewed by tL District. The Commission, however, has stated that the inclusion ut your none as an employee or consultant on a "pricing proposal ", even if submitted to or reviewed by the District, 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 District and assist in the prepar:tioh associated with appearances to be made by a person other than yourself r.efe re 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 would not prohibit or preclude you from making general ir1frr°rnational 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. This would Le true even if your administration of a contract involved dealing with personnel of the D i s t r i c t 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, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Lot. If this Cc�urs, ;;cur conduct should conform to the requirements of the Ethics Act as outlined above. Furthee, should you terminate your employment as outlined above, 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. A. Kumar P.E. August 9, 1984 Page 5 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, •Sandra S. Christianson 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