HomeMy WebLinkAbout82-550 HarmanDear Mr. Harman:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
May 28, 1982
ADVICE OF COUNSEL
82 - 550
Mr. Harold Harman
Box 174
McConnellsburg, PA 17233
RE: Section 3(e); PennDot Civil Engineer; Employment by Private Contractor
Doing Business with PennDot
This responds to your letter of April 28, 1982 in which you requested
written advice from the State Ethics Commission.
Issue: How does the Ethics Act affect the ability of a PennDot Civil Engineer
III who, upon retirement from government employment, plans to work for a
contractor who does business with PennDot?
Facts: You presently work as a Civil Engineer III for the Pennsylvania
Department of Transportation (PennDot) in District 90. Your duties and respon-
sibilities in this area include advising consulting engineering firms that
have contracted with the Department to inspect a highway construction project
within District 90. You advise the consultant on construction methods and
practices, departmental policies and procedures, and federal regulations. The
consultant assumes responsibility for overall project control.
You anticipate leaving your present job to accept employment as a project
engineer for a private contractor that does business with PennDot. You would
be Project Superintendent, responsible for engineering stakeout, scheduling
operations, controlling materials, securing sub - contractors, and estimating
costs and new project start -ups. You indicate that for the first year of your
new job you would be working on non - Pennsylvania projects, possibly assigned
to the employer's Tennessee offices and would not sign documents, proposals,
etc. to be sumitted to Penndot within this first year period.
Discussion: As a Civil Engineer III for the Department of Transportation, you
are a public employee subject to the Ethics Act. 65 P.S. §401 et seq.
Section 3(e) of the Act, applicable to you as a "former public employee ",
states that:
State Ethics Commission • 308 Firance Building • Harrisburg. P3nnsylvvania
Mr. Harold Harman
May 28, 1982
Page 2
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(e)
The governmental body with which you are associated is the Pennsylvania
Department of Transportation District 90. Thus, the one -year restriction
applies only to your representing persons before District 90 of PennDot.
The Ethics Commission has determined that the representation prohibition
of Section 3(e) extends to :uch things as:
1. personal appearances before the District with which you were
associated, including but not limited to negotiations on contracts
with that body;
2. attempts to influence that governmental body;
3. participation in any manner before that District in any case over
which you had supe" vision, direct involvemen :, or responsibility
while employed by the governmental body;
4. lobbying, that is, representing the interests of any person before
the governmental body in relation to legislation, regulations, etc.
See Russell, 80 -048; Seltzer, 80 -044.
The mere act of preparing and signin' a proposal or of having your name
appear as an employee who will serve in regard tr the proposal will constitute
an attempt to influence your former governmental body, should such a proposal
be presented to District 90. Kilareski, 80-054, The inclusion of your name on
the proposal has at least the potential to influence the decision of th'
District and is therefore prohibited within the year after you ler.ve PennDot.
Thus, you my not prepare, sign anc /or file any documents or proposals
that will be directed to or related to District 90 of PennDot for one year
after you leave that body. You indicate this is already contemplated. Never-
theless, you may assist in preparing such items where another person signs as
the preparer.
Conclusion: You may participate, as ?roject Engineer in assisting the prepa-
ration of documents that will b presented tc District 90, PennDot by your
private employer. However, in the first year after you leave the Deportrl nt,
your participation must r.ot include your direct participation before District
90 or signature on any of the documents sent to it. :'imila.rly, your name
cannot appear on any document sent to PennDot, District 90 or relating thereto
identifying you as a technical assistant or supervisor for the particular
project within District 90.
Mr. Harold Harman
May 28, 1982
Page 3
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 may be scheduled and a formal
Opinion from the Commission will be issued. You should make such a request or
indicate your disapproval of this Advice within the next 30 days.
BF /rdp
cc: Thomas D. Larson, Secretary
Sincerely,
dra S. Chri.tianson
General Couns-1