The URL can be used to link to this page

Home My WebLink About83-588 NaceMr. Richard M. Nace R.D. #3, P.O. Box 211 Mifflintown, PA 17059 Dear Mr. Nace: Matin Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 September 7, 1983 ADVICE OF COUNSEL RE: Construction Manager, Restrictions on Employment 83 -588 This responds to your letter of August 2, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether, under—.the Ethics Act, there are any restrictions on your acceptance of employment with a construction company following your possible termination of employment with the Pennsylvania Department of Transportation (Penr")ot). Facts: You currently serve as an employee within PennDot and have so served for the past 25 years. Your employment has been with the Construction Department, District 8 -0 Office located at 21st and Herr Streets in Harrisburg. You have never been associated with the main offices of PennDot and your authority has been limited throughout your employment to District 8-0. Currently you serve A Transportation Construction Manager I within District 8 -0. This is a managerial job in construction and materials inspection wherein you direct the inspection of materials and workmanship on complex road and bridge projects. You are currently working on such a project in the Hershey area. Recently you were approached by a contracting company regarding the possibility of becoming employed with this company as a job supervisor. This managerial work would involve direction of production work and completion of designated road and bridge projects which might be secured by this contracting company. In this capacity, you would be required to insure that production operation schedules are met involving your organizing of work, assigning of work, and securing of proper materials, personnel, equipment, etc., to insure that the project is completed in the time alotted. In this capacity, you would be called upon to interpret contractual and administrative rights and obligations for employees of the contracting company and to keep accurate records of the contracting company's project, including wages, expenses, etc. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Richard M. Nace September 7, 1983 Page 2 It should be noted that if you secure such employment with this contracting company, your first responsibility would be to operate as a job supervisor on a road and bridge rehabilitation program on Interstate 83 in the York area. It is also important to note that in relation to this particular York area project, you were not, as a public employee, directly involved with awarding of this contract, supervising, or inspecting this particular project. In addition, you are not currently working on this particular project, although this bridge project is within the District 8 -0 jurisdictional area. Finally, as a project for job supervisor for the contracting company, you would envision having to deal with District 8 -0 personnel to administer the existing contract of the contracting company with relation to Interstate 83 in York. However, you would not be re- negotiating this contract or be involved in obtaining changes to specifications or work orders. You indicate that you would refrain from such activity for a period of one year following the termination of your employment with PennDot and that someone else within the contracting company would be assigned to handle these task, if same became necessary. You would, however, be involved with administering the existing contract as noted above. Discussion: As k Transportation Construction Manger I within the District -0 of PennDot, you are a "public employee" within the definition of that term as contained in the Ethics Act. Consequently, if you were to accept employment with the contracting company, hereinafter the Company, you will become a "former public employee" subject to the provisions of Section 3(e) of the Ethics Act which provide as follows: (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(e). Initially, the main question to be answered in the context of your request is to identify those "governmental bodies" with which you were associated" while working with District 8 -0 of PennDot and the scope of the prohibitions associated with the term "representation." In this context, the Ethics Commission has previously ruled that the scope of the "governmental bodies" with which an individual may have been deemed to be "associated" during his tenure of public employment, extend to those entities where he had influence, responsibility, supervision, or control. From your job description and based upon the facts outlined above and presented in your conversation with our office on September 6, 1983, your jurisdiction, responsibility, Mr. Richard M. Nace September 7, 1983 Page 3 influence, and control are limited to District 8 -0. You did not have any state -wide jurisdiction or jurisdiction beyond the boundaries of District 8 -0. The "governmental body" with which you must be deemed to have been associated is District 8 -0. Thus, the one -year restriction outlined in Section 3(e) applies to your representing persons before District 8 -0. The Ethics Act would not effect your ability to appear before agencies, districts, or entities other than PennDot's District 8 -0. The Ethics Commission, furthermore, has intenpeted the `term "representation" as that term is used in Section 3(e) to prohibit: 1. Personal appearances before District 8 -0 including but not limited to negotiations on contracts; 2. attempts to influence that governmental body; 3. participating in any manner before District 8 -0 in any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by PennDot. 4. lobbying, that is representing the interest of any person before District 8 -0 in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere fact of preparing and signing as a preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, has been held to constitute an attempt to influence your governmental body -- District 8 -0. See Kilareski, 80 -054. Therefore, within the first year after you leave District 8 -0, you should not allow your name to appear on proposals, documents, or bids, either as preparer or as the person who will provide technical assistance if those documents, proposals, bids, etc., will be presented to District 8 -0. You may, however, even under the above - referenced restrictions assist in the preparation of any documents presented to District 8 -0 assist in the preparation associated with appearances to be made by any other person or individual before District 8 -0, so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act does not prohibit or preclude you from making general informational inquiries of District 8 -0 to secure information which is available to the general public. Cutt, 79 -023. Mr. Richard M. Nace September 7, 1983 Page 4 Likewise, the Commission has concluded that if you are engaging in administering an existing contract, as opposed to negotiating or re- negotiating a contract, your activities would not be prohibited by the Ethics Act. This would be true even if your administration of a contract involved dealing with District 8 -0 personnel or personnel within PennDot generally. Dalton, 80 -056 and Beaser, 81 -538. Finally, if,'oL disagree with this Advice or if you have any reason to challenge same, you may request - that the full Commission review this Advice. 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. Conclusion: Upon your termination of Service with District 8 -0, you would become a former public employee subject to the restrictions `imposed by the Ethics Act and your conduct and relation to the Ethics Act and this new employment should conform to the requirements of this Advice. 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 acs complained of in reliance on the Advice given. SSC /rdp This letter is a public record and will be made available as such. cc: Bruce Doman Thomas D. Larson Secretary Sincerely, Atli i Sandra S. Chr" tianson General Coun el