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HomeMy WebLinkAbout86-509 GreeneJeffrey L. Greene 309 Harhison Road St. Davids, PA 19087 Dear Mr. Greene: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 Fehruary 4, 1986 ADVICE OF COUNSEL 86 -509 Re: Former Public Employee; Section 3(e), Civil Engineer IV, Pennsylvania Department of Transportation This responds to your letter of January 22, 1986, 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 advised that on February 5, 1986, you will retire from your service with the Pennsylvania Department of Transportation, hereinafter the Department. You do not indicate what, if any, new employment you will ohtain after this retirement. You do indicate that while employed by the Pennsylvania Department of Transportation you were classified as a Civil Engineer IV in the Division of Location, Liaison, and Planning, now known as the Project Management Unit. You were assigned to the Department's Engineering District 6 -0 in St. Davids, Pennsylvania. We have reviewed your joh.description and have incorporated that document herein by reference. Pursuant to your description, a person in your classification generally performs as follows: Manages, coordinates and reviews final design work performed by consultants under contract to the Pennsylvania Department of Transportation. Evaluates, reviews and processes submission of engineering reports, mapping, traffic analysis, proposed line and grade, intersection and interchange geometrics right -of -way, hydraulic analysis, structure types and sizes, suhsurface reports, pavement analysis and determination, lighting layouts, maintenance of traffic schemes, roadside treatments, traffic signal layouts, erosion and sedimentation control plans and environmental documents. Mr. Jeffrey L. Greene February 4, 1986 Page 2 Assures that all plans and Environmental documents developed are compatible to Pennsylvania Department of Transportation and FHWA requirements, AASHTO cri ter municipal needs, local and regional planning goals, and programmed financial commitment. Responsible for project scheduling, review of consultant invoices, an insures that the design projects are in conformity to all laws and current Departmental policies. Represents the Department at meetings relative to transportation studies, coordination and review by the Central Office and the FHWA, utility involvements, etc .. Conducts public hearings , meetings with involved municipal officials and effected citizens and presents the Department projects to civic groups. Prepares all project correspondence to consultants, Federal, State and Local officials, interested citizens, etc., pertaining to all phases of the design project. Frequently required to participate in consultant fee negotiations, plan checking, right -of -way negotiations, and follow -up problems encountered in construction. You also developed and managed the Traffic Management Plan for the $140 million Schuylkill Reconstruction Project which involves negotiating new public transit services, coordinating with elected officials and municipal officials, preparing public information kits and a telephone hot line. You now request the advice of the State Ethics Commission regarding any restrictions upon your activities within the purview of the State Ethics Act. Discussion: At the outset, it must be 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 be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a Civil Engineer IV for the Department, 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. §402; 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. See Montgomery, 84 -004; Kotaliak, 84 -007. 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: Mr. Jeffrey L. Greene February 4, 1986 Page 3 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 associ ated while worki ng with the Department. 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 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 ommission, 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 District 6 -0, hereinafter the District. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the District. Therefore, within the first year after you would leave the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Di strict. 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 the Department. 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 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 puhlic 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 puhlic employer. See Anderson, 83 -014; Zwi kl , 85 -004. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Mr. Jeffrey L. Greene February 4, 1986 Page 4 Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lohbying, and submitting hid or contract proposals which are signed by or contain the name of the former puhlic official or puhlic 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 District; 3. Participating in any matters before the District over which you had supervision, direct involvement, or responsibility while employed by the Department; 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 hid, if submitted to or reviewed by the District, constitutes an attempt to influence your former governmental body. See Ki l a reski , 80 -054. Therefore, within the first year after you leave the Department, 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. 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 indirectly influence these entities or to otherwise make known to the District your representation of, or work for your new employer. Mr. Jeffrey L. Greene February 4, 1986 Page 5 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, R0 -056 and Reaser, 81 -538. Conclusion: As a Civil Engineer IV, you are to he 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 6 -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 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. Si ncerely, Gener. Counsel Mr. Jeffrey L. Greene Orth- Rodgers and Associates, Inc. 230 South Front Street Philadelphia, PA 15102 Re: Advice No. 86 -509 Dear Mr. Greene: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 March 17, 1986 SUPPLEMENTAL ADVICE OF COUNSEL I am in receipt of your letter dated February 13, 1986, wherein you ask for a clarification of the Advice of Counsel No. 86 -509 issued on February 4, 1986. You have indicated in your follow -up letter that during the course of performing your various duties for Orth- Rodgers and Associates, Inc., you may be called upon to represent various private clients before local governmental bodies in the Commonwealth. As part of this you indicate that you may be required to present expert testimony on traffic and transportation issues including the presentation of testimony and the preparation of reports. You have indicated that as a follow -up to this procedure, the private clients may he required to present such expert testimony and reports to District 6 -0 of the Pennsylvania Department of Transportation, your former employer. This would be done in order to obtain PennDot approval of proposed projects along state maintained highways. In this respect, you indicate that you may he required to appear and represent your private clients before the Traffic Unit and the Permits Unit of the Pennsylvania Department of Transportation's District 6 -0. Initially, it is noted that Section 403(e), of the State Ethics Act, would present no prohibition upon you representing private clients before local governmental bodies. As noted in the previously issued advice, the Ethics Act would only place restrictions upon your dealings with your former governmental body, i. e. District 6 -0 of the Pennsylvania Department of Transportation. Therefore, your testimony and report preparation on hehalf of private clients who are seeking approval from local governmental bodies and municipalities would not be prohibited. Also, as noted in that previously Mr. Jeffrey L. Greene March 17, 1986 Page 2 issued advice, however, is the fact that your activities would he restricted insofar as you would represent these clients before your former governmental body. We have determined, as previously noted, that this body would be District 6 -0 of the Pennsylvania Department of Transportation. Thus, you could not within the one year period, personally represent your private clients before District 6 -0 of PennDot on any matter. The Commission has not narrowed the restriction in this respect to particular units or divisions within the District. All prior advices and opinions of the Commission and situations of a similar nature, have adamantly set forth the proposition that the former governmental body would be District 6 -0 generally. Thus, your contacts as set forth in your letter with your former governmental body, would be the type of activity that is specifically prohibited by Section 3(e) of the State Ethics Act. Your expert testimony and report preparation on behalf of a private client that is later submitted to District 6 -0 would be an attempt to influence that governmental body in relation to your private clients activities. This is the type of activity that was specifically included within the term representation as set forth in the previous advice. I trust that this supplemental advice will clarify the parameters of the previously issued advice of counsel. JJC /sfd John General Counsel