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HomeMy WebLinkAbout84-623 ConnerGerald W. Conner Municipal Services Specialist RD #3 Box 235 Brookfield, PA 15825 Dear Mr. Conner: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 October 25, 1984 ADVICE OF COUNSEL 84 -623 RE: Former Public Employee; Section 3(e), Municipal Services Specialist, PennDot This responds to your letter of September 19, 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 currently serving as a Municipal Services Specialist I with the Department of Transportation, hereinafter, PennDot. In this capacity you work in assisting and administering liquid fuels allocations to 65 municipalities in Clarion and Jefferson counties, within Engineering District 10 -0. In this position you are responsible for the following activities: 1. Coordinating and reviewing municipal service activities in the assigned geographical areas of District 10 -0, hereinafter the District; 2. Meeting with city, county, township, and other muni discuss problems or propose construction projects i all aspects of proposed projects including highway highway, resurfacing, bridge construction, and rela projects; cipal officials to n advising them on relocation, new ted maintenance Gerald W Conner October W. 1984 Page 2 3. Performing investigations to determine the feasibility of any proposed improvement, its cost, economic justification, and public necessities; 4. Interpreting and explaining departmental contract requirements to contractors and /or municipal officials, when necessary; 5. Reviewing plans and cost estimates prepared by consulting engineers or construction engineers, including responsibility for inspeciton of all materials, construction and workmanship for compliance with established PennDot standards and specifications. You indicate that you may retire from your position with the state government and take employment with the Walsh Equipment Company, hereinafter Walsh. Walsh is a supplier of excavating and grading equipment, drainage pipe, roadway signs, and snow removal items. Walsh, at present, sells to municipalities, excavation companies and individuals. Walsh has not dealt with any state agencies in the past and they have no plans for participating in selling to any state agencies in the future. Discussion: As a Municipal Services Specialist I 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 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. Consequently, if you were to terminate this employment you would become a "former public employee" subject to 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. Gerald W. Conner October 25, 1984 Page 4 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 body or 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. 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 which will be reviewed by the District. 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 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 preparation associated with appearences to be made by a person other than yourself before the District 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. Gerald W. Conner October 25, 1984 Page 3 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). 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, hereinafter, the District. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment with PennDot would be 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 or entities other than with respect to the District. Likewise, there is no - general restriction against your seeking employment and engaging in private work or supplying services to clients or employers, in general, following your retirement or departure 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. Gerald W. Conner October 25, 1984 Page 5 Likewise, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or re- negotiating 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 Distrist or personnel within PennDot generally. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a Municipal Services Specialist I, 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 Act. If this occurs, your conduct should conform to the requirements of the Ethics Act as outlined above. Further, 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. 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 /sfd Sincerely, Sandra S. Chr stianson General Coun el cc: Bruce Doman, Inspector General Thomas Larson, Secretary - Personnel Director