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HomeMy WebLinkAbout84-640 DockendorfAM John Dockendorf, Chief Mass Transit Department of Transportation Commonwealth of Pennsylvania 1215 Transportation & Safety Building Harrisburg, PA 17120 1..J. ;_1 December 31, 1984 ADVICE OF COUNSEL 84 -640 Re: Former Public Employee; Section 3(e), Mass Transit Manager II Dear Mr. Dockendorf: This responds to your letter of December 5, 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: You indicate that you are currently employed as the chief of the Mass Transit Assistance Division of the Bureau of Public Transit and Goods Movements System within PennDot. You have provided us with a job description and an organization chart which indicates that the Urban Mass Transit Assistance Division, hereinafter the Division, is structurally within the Public Transit and Goods Movements Bureau, hereinafter the Bureau. You serve as one of the chiefs of the divisions (including urban, rural, goods movement and grants management) within the Bureau. In this capacity you are responsible for the following duties, according to your job description: 1. You supervise the Division staff of six professional and assigned clerical personnel and you have the responsibility for reviewing work, evaluating performance, filling staff personnel compliment and vacancies, providing guidance etc. John Dockendorf December 31, 1984 Page 2 2. You develop program regulations, standards and guidelines including reviewing and writing program legislation, interpreting legislation and writing program regulations and standards to assist applicants. 3. You serve as Division liaison with all program participants, Commonwealth agencies and outside agencies and in this capacity, you provide advice and information about programs and coordinate Division activities with other participating agencies. 4. You manage the implementation of Division transportation programs including assuring that the program applications are correctly prepared, assisting in preparation of required budgets, and supervising the administration of on -going programs as well as initiating appropriate programs to meet transportation needs. In the capacity as chief of the Division you review and evaluate work for all urban systems in the state, including Southeastern Pennnsylvania Transit Authority, hereinafter SEPTA. However, you do not have the authority to sign contracts or to sign grant approval letters or finalize department policy with respect to SEPTA or other urban systems within the state. Basically, you are involved in recommending action to the Bureau Director regarding urban grants and urban grant policies. You incicate that you have recently been offered a position with SEPTA as supervisor of operating grants and compliance. In this position you would be expected to prepare federal, state, and local operating grants and insure compliance with all applicable state, local, and federal laws, as well as with policies and other grant requirements. In addition, you would be required to be involved in the preparation of budgets, cost and revenue forecasts and related financial matters for SEPTA. However, in this new position you would not have the authority to sign contracts or grant approval letters. Since your currrent job involves administering SEPTA grants you want to make sure that the Commonwealth would not regard your acceptance of employment with SEPTA as a supervisor of operating grants as being in conflict with the Ethics Act. You indicate that you have preliminarilly discussed this matter with the Inspector General at PennDot, Mr. Bruce Doman and that he informally advised you that there was no conflict under this situation. However, Mr. Doman did advise you to write to the Ethics Commission to receive a formal ruling in this regard. Consequently, you have communicated with us as outlined above and our response, analysis and conlusions follow. John Dockendorf December 31, 1984 Page 3 Discussion: As a Mass Transit Manager II and chief of the Division for the Division within 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 or service , 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 office, 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 the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the Bureau. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment or service with PennOot would be the Bureau. 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 Bureau. John Dockendorf December 31, 1984 Page 4 This prohibition against "representation" of persons or new employees vis -a -vis the Bureau would be typically applicable to any employer or person as defined in the State Ethics Act as a "business, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons." See 65 P.S. 402. However, in the case where you are leaving your governmental employer and assuming a new position with another level of government or governmental entity, such as SEPTA, the question is whether the same restrictions against "representation" would be applicable as if you were to "present" any "person" other than another level of government or governmental entity as set forth above. In this analysis the Commission has recently issued opinions which indicate that the legislature most likely intended to prohibit your activity or representation of persons in circumstances most likely to occur or give rise to a conflict, that is where the government employee or official leaves the public sector and enters the private sector. The Commission considered these questions in Hagan, 84 -019 and Pinto, 84 -021. In each of these cases former public employees were found to have no restrictions on their ability to represent their new governmental -level employers or entities before the body with which they had been associated even though these individuals did become "former public employees" upon the termination of their services with the public agencies or entities. The Commission's conclusion was primarily based upon the fact that where the Post - Commonwealth employment is with another governmental body or entity or in the case of Pinto, an other entity within the state government, the concerns the legislature sought to address through Section 3(e) of the Ethics Act were allayed or reduced because the post - Commonwealth employer could not be expected to seek to influence the Commonwealth entity formerly served by these individuals in the same manner as the non - governmental person or perspective employer would. Therefore, the Commission concluded that the restrictions of Section 3(e) of the Ethics Act would not be applicable in such circumstance. Similarly, applying these ruling to your case, we must conclude that when and if you were to leave the employ of PennDot and to secure or seek new employment with SEPTA you would, of course, become a "former public employee." However, for the reasons set forth in the Opinions cited above, Section 3(e) of the Ethics Act would not restrict your ability to represent SEPTA before the Division, the Bureau, or PennDot generally. Conclusion: Upon termination of your service with the Commonwealth you would became a "former public employee," but for the reasons set forth above, Section 3(e) of the Ehtics Act does not restrict your ability to "represent" SEPTA before the Division, the Bureau, or PennDot generally. John Dockendorf December 31, 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 Si cerely, LI Sandra S. Chr stianson General Counsel