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HomeMy WebLinkAbout84-631 BrociousGeorge D. Brocious R.D. #1 Mayport, PA 16240 State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 December 5, 1984 ADVICE OF COUNSEL 84 -631 RE: Former Public Employee; Section 3(e), County Maintenance Manager, PennDot Dear Mr. Brocious: This responds to your letter of October 27, 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 Pennsylvania Department of Transportation hereinafter, PennDot. Facts: Your letter states that you are currently employed with PennDot in the capacity as a county maintenance manager and that you serve in this capacity in the Maintenance Division of District 10 -5 (Jefferson County). It should be noted that in this capacity you have been required to file a statement of financial interests under the State Ethics Act. While you are currently employed with PennDot you are interested to know what your duties and responsibilities in regard to a job offer may be. Specifically, another PennDot employee, Mr. Ronald E. Hatter, has approached you to inquire if you would consider working for him as the field operations manager for a minority business enterprise which he is considering starting. We note that we have recently issued an advice to Mr. Hatter upon his request which is docketed at Hatter, 84 -629. You are interested in his offer and you seek our opinion as to whether you can legally accept this position after quitting your present job and also, if you accept the position, what restrictions if any, would be placed upon you or Mr. Hatter's proposed business venture. It is your understanding that this business venture would consist of providing traffic control services to contractors. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. George D. Brocious December 5, 1984 Page 2 Discussion: As a county maintenance manager for PennDot, you were 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 or upon termination of 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. 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 Ewin ?, 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 -5. 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 10 -5. 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 District 10 -5, hereinafter the District. Mr. George D. Brociouis December 5,1984 Page 3 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 the District. You may not, however, "represent" any new employer or client before the District as described more fully below for the first year after you 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 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. Mr. George D. Brocious December 5, 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 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 appearances to be made by a person, other than yourself, before 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 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. This would be true even if your administration of a contract involved dealing with personnel of the District or personnel within PennDot generally. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a county maintenance manager, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with PennDot, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, 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. Mr. George D. Brocious December 5, 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 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 cc: Bruce Domen, Inspector General Thomas Larson, Secretary, PennDot Sincerely, Sandra S. Christianson General Counsel