HomeMy WebLinkAbout86-523 LeoneEdwin F. Leone, P.E.
290 Hamill Road
Indiana, PA 15701
Dear Mr. Leone:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
March 10, 1986
ADVICE OF COUNSEL
86 -523
Re: Former Public Employee; Section 3(e), Location & Liaison Engineer,
Pennsylvania Department of Transportation
This responds to your letter of February 12, 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 have indicated that on April 2, 1986, you will he retiring from
the Pennsylvania Department of Transportation, hereinafter Pennfot. While
employed hy Pennflot you served in the position of District Location & Liaison
Engineer in District 10 -0, hereinafter the District. In your position as a
Location & Liaison Engineer, you generally were responsible for the
coordination of all design activities between the consultant engineering firm
and the Department of Transportation. Generally, an employee in this class
supervises all engineering activities associated with the location, design, or
construction of several complex civil engineering projects such as roads,
bridges, or buildings, transportation planning or traffic control of highways;
or performs work of equivalent scope and difficulty in a staff or consultative
capacity; or plans, organizes, and directs the review of construction and
maintenance methods utilized hy Transportation district and county maintenance
personnel. In an engineering district, employee would function as a section
head or assistant construction engineer. Assignments are received with little
or no technical instructions and employees proceed with independence in
working out the details and organization necessary to complete projects. Work
requires the independent selection of courses of action and the resolution of
problems within the framework of broad engineering and administrative
guidelines. Supervision is normally exercised over engineers, technicians, or
inspectors. Work is reviewed by an administrative or technical supervisor for
overall effectiveness and satisfactory completion of assigned projects.
Edwin F. Leone, P.E.
March 10, 1986
Page 2
We have reviewed both your current job description as well as the
classification specification 1114, for the position that you held while
employed hy the department. These documents have been incorporated herein hy
reference. Upon your retirement from the fepartment, you will begin working
for a private engineering firm. Your work will he in the area of construction
inspection on Pennflot projects. You have requested the advice of the State
Ethics Commission as to whether there is any prohibition placed upon your
contemplated activity within the purview of the State Ethics Act.
fliscussion: 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.
As a Location A Liaison Engineer for Pennflot, you are to he considered a
"puhlic employee" within the definition of that term as set forth in the
Ethics Act and the regulations of this Commission. 65 P.S. M402; 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 Lugar, 85 -594, Montgomery, 84 -044, Reri, 85 -514.
Consequently, upon termination of this employment, you would become a
"former puhlic 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 puhlic employee shall represent
a person, with or without compensation, on any matter
before the governmental hody 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
holy" with which you were associated while working with Pennflot. Then, we
must review the scope of the prohihitions associated with the concept and term
of "representation ". In this context, the Ethics Commission has previously
ruled that the "governmental hody" with which an individual may he deemed to
have heen associated during his tenure of puhlic office or employment extends
to those entities where he had influence, responsihility, supervision, or
control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania,
State Ethics Commission, 435 A.2d 940 (1981).
Edwin F. Leone, P.E.
March in, 19R6
Page 3
From the description and analysis of your duties and responsihilities and
haled upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been the District. Thus, the
"governmental body" with which you have been "associated" upon the termination
of your employment would he the District. Therefore, within the first year
after you would leave Pennflot, Section 3(e) of the Ethics Act would apply and
restrict your "representation" of persons or new employers vis -a -vis the
District.
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 Pennflot. 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 puhlic employment he must act consistently with
the public trust and upon departure from the public sector, that individual
should not he allowed to utilize his association with the public sector,
officials or employees to secure for himself or a new employer, treatment or
henefits that may he obtainable only hecause of his association with his
former puhlic employer. See Anderson, R3 -014; 7_wikl, R5 -r104.
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 hehalf of any person
including hut not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
submitting hid 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 prohihit:
1. Personal appearances before the governmental body or hodies with
which you have been associated, (that is the District), including, hut 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 Pennfot;
Edwin F. Leone, P.E.
March 10, 1986
Page 4
4. Lohhying, that is representing the interests of any person or
employer hefore 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 hid, or listing your name as the person who will provide technical
assistance on such proposal, document, or hid, if suhmitted to or reviewed by
the District, constitutes an attempt to influence your former governmental
hody. See Kilareski, 80 -054. Therefore, within the first year after you
leave Penniot, you should not engage in the type of activity outlined ahove.
The Commission, however, has stated that the inclusion of your name as an
employee or consultant on a "pricing proposal," even if suhmitted to or
reviewed by the District, is not prohihited as "representation." See Kotalik,
24 -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 hefore the District.
Once again, however, your activity in this respect should not he revealed to
the District. Of course, any han 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 puhlic. See Cutt,
79 -023. This, of course, must not he 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.
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 prohihited by the Ethics Act. See Dalton, 80 -056 and
Reaser, 81 -538.
Conclusion: As a Location & Liaison Engineer, 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 puhlic employee" suhject 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 ahove. Your governmental hody for the purpose
of the one year representation restriction is the District 10 -0.
Further, should you terminate your employment or service, as outlined
ahove, 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.
Edwin F. Leone, P.F.
March 10, 19R6
Page 5
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 puhlic record and will he made availahle 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 hefore the Commission will he scheduled and a formal
()pinion from the Commission will he issued. Any such appeal must he made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
Si r -ly
n J. Co o
General .unsel