HomeMy WebLinkAbout80-574 MuirTO:
DISCUSSION:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
March 12, 1980
ADVICE OF CHIEF COUNSEL
William R. Muir, Jr., Esquire
Inspector General
Department of Transportation
Harrisburg, PA
Advice # 80 -574
RE: Limitations Imposed on Former Public Employees and
Public Officials of Penn DOT
FACTS:
On March 6, 1980 the inspector general of the Department
of Transportation wrote this Commission asking for guidelines
involving employees of the Pennsylvania Department of
Transportation taking positions with private industry.
The threshold issue is to determine whether the State
employee is covered by the State Ethics Act as either a
public employee or public official.
Public employee is defined as "Any individual employed
by the Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a noministerial
nature with regard to:
(1) contracting or procurment;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimus nature
on the interests of any person.
Our regulations cover field employees as follows:
2.10(a)(6) Those individuals working in the field
administering or monitoring grants or subsidies,
planning, zoning, inspecting, licensing, auditing or
any other activity where the individual is not under
direct personal supervision while he or she is
performing his or her employment function. Those
individuals who are immediate and regional supervisors
of those persons described in this subsection.
William R. Muir, Jr., Esquire
March 12, 1980
Page 2
Section 3(e) of the State Ethics Act states: "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."
The key words are "governmental body" and
"representation."
By "governmental body," we do not necessarily mean
the entire agency or department, but the sphere of
influence within that agency or department which the
public employee had. For example, where we were dealing
with an inspector at a regional office, his sphere of
influence is probably not beyond that regional office,
so that there would be no prohibition on working with
private industry in another region. It is up to the
individual department to define the parameters of an
individual's sphere of influence, subject to review by
the State Ethics Commission.
By "representation" we are referring to any com-
municiation where the department has descretion. A
request for copies of published material generally
available to the public is not "representation," while
accompanying an inspector on a tour of the construction
site is "representation" and is totally barred.
The State Ethics Act does not prohibit a former
employee from utilizing expertise gained while an employee
of Penn DOT. For example, a former employee could prepare
contract proposals for the new employer providing the
former employee did not sign the proposals or be involved
in communicating with Penn DOT employees as to the terms.
A former employee may not utilize any confidential
information received through holding a public position to
obtain financial gain for the new employer, himself, or
herself. Thus, a former employee who is involved in
working with Penn DOT in a matter in litigation may not
"switch sides" and disclose information which would
prejudice Penn DOT's legal case.
William R. Muir, Jr., Esquire
March 12, 1980
Page 3
SUMMARY:
DRM /rdp -2
Former legal counsel is likewise barred from representing
any person at any administrative level within Penn DOT. However,
the bar does not extend to in -court representation, such activities
being regulated by the Disciplinary Board of the Supreme Court
of Pennsylvania.
First, it is necessary to determine whether the State
employee occupies a position which falls within the definition
of public employee.
The "governmental body" may be limited to the bureau
level or regional office depending on the individuals sphere
of influence.
Requests for regularly published material are permitted,
but any communication with any individual in the governmental
body involving a matter in which the Department has descretion
is prohibited.
There is a total bar on any involvement in any matter in
litigation where the individual has worked on the matter in
litigation while a Penn DOT employee or official.
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.
A personal appearance before the Commission and a
formal opinion will be issued upon your request if you
feel this reply does not suffice.
This letter is a public record and will be made
available as such.
DAVID RITTENHOUSE ORRISON
Chief Counsel