HomeMy WebLinkAbout85-601 GhandhiMr. lishakant R. Ghandhi
2027 Latta Street
Allentown, PA 18104
Dear Mr. Ghandhi:
State Ethics Commission
308 Finance Building
P. 0. Box 11 470
Harrisburg, Pa. 17108-1470
December 9, 1985
ADVICE OF COUNSEL
85 -601
RE: Former Puhlic Employee; Section 3(e), Civil Engineer III, Pennsylvania
Department of Transportation
This responds to your letter of November 14, 1985, 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.
Facts: You are currently employed hy the Pennsylvania Department of
Transportation, hereinafter PennDot, as a Civil Engineer III. Assigned to the
department's Allentown District, 5 -0. In that position you are employed in
the Rridge Division within the District. Pursuant to your most recent joh
description and you position classification, you are involved in the design
and preparation of plans for the most complexed hridges in the district.
Additionally, you perform and assist in the preparation of costs and quantity
estimates and the paper work required for submission to the central office.
Generally, an employee in this class performs a variety of complexed
engineering duties associated with the location, design or construction of
hridges. Work involves independently performing or monitoring preliminary
engineering studies conducting location or foundation investigations,
preparing or reviewing plans and specifications or serving as construction
engineer on large and complex projects. Assignments require the independent
selection of courses of action for which well established guidelines are not
available. Supervision is normally exercised over engineers, technicians or
inspectors. Work is assigned in broad outline hy an administrator or
technical supervisor who reviews completed work for engineering soundness and
satisfactory completion of assigned projects.
niscussion• At the outset, it must he noted that the Ethics Commission may
only address your question within the purview of the Ethics Act. The
Commission may not and will not offer advice with respect to any duties or
obligations that may he imposed hy other provisions of law such as the State
Adverse Interest Act or the Governor's Code of Conduct.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. lJshakant R. Ghandhi
December 9, 1985
Page 2
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. 65 P.S. 5402; 51 Pa. Code 51.1. 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.
See Kumar, 84 -596.
Consequently, 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 revi ew 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 or employment extends
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 appears to have been exercised within District 5 -0.
Thus, the "governmental body" with which you have been "associated" upon the
termination of your employment would be District 5 -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 "representation"
of persons or new employers vis-a-vis the District, see Berri, 85 -514;
Carrier, 85 -515 and Kozy, 84 -608.
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 limitation on the type of employment in which you may engage,
following your departure from PennDot. We do note, however, that the
conflicts of interest law is primarily concerned with financial conflicts and
violations of the public trust. The intent of the law generally is that
Mr. Ushakant R. Ghandhi
December 9, 1985
Page 3
during the term of a person's public employment he must act consistently with
the public trust and upon departure from the public sector, that individual
should not be allowed to utilize his association with the public sector,
officials or employees to secure for himself or a new employer, treatment or
benefits that may be obtainable only because of his association with his
former public employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction 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, 1 obbyi ng, 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 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 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.
The Commission, has also held that preparing and signing a proposal,
document or bid, or listing your name as the person who will provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
the District, constitutes an attempt to influence your former governmental
body. See Kil areski , 80 -054. Therefore, within the first year after you
leave PennDot, you should not engage in the type of activity outlined above.
(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).
Mr. tJshakant R. Ghandhi
December 9, 1985
Page 4
You may, assist in the preparation of any documents presented to the
District so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the District.
Once again, however, your activity in this respect should not be revealed to
the District. 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. This, of course, must not be done in an effort to indirecT
influence these entities or to otherwise make known to the the District your
representation of, or work for your new employer.
Finally, 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. 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. Upon termination of your service with
the Pennsylvania Department of Transportation, 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. Your governmental body for the purpose of the
one year representation restriction is District 5 -0.
Further, should you terminate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests 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 Commission w i l l be scheduled and a formal
Opinion from the Commission will he 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.
J JC/ rdp
Si ncerely,
. �� N ( G :
John J. 'ontino
Gen: al Counsel