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HomeMy WebLinkAbout86-525 MitchellMr. Joseph A. Mitchell 66 Indiana Street Homer City, PA 15748 Dear Mr. Mitchell: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 March 11, 1986 ADVICE OF COUNSEL 86 -525 Re: Former Public Employee; Section 3(e), Civil Engineer IV, Pennsylvania Department of Transportation This responds to your letter of February 24, 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 you are currently employed by the Pennsylvania Department of Transportation as a structual engineer in District 10 -0. You serve in that capacity as a Civil Engineer IV and are currently considering retiring from Commonwealth service. In your capacity you serve as an assistant to the district construction engineer and are involved in the planning and coordination of the work in the district regarding various construction projects. We have reviewed your joh specification #1114 and your joh description which we have incorporated herein hy reference. Generally, these documents provide that an employee in this class suprvises all engineering activities associated with the location, design, or construction of complex civil engineering projects such as roads, bridges, 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, such an employee would function as a section head Mr. Joseph A. Mitchell March 11, 1986 Page 2 or assistant construction engineer. Assignments are received with little or no technical instruct ions and employees proceed with independence i n 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 i s 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. You have indicated that you plan to continue your engineering career after retirement by either entering into a partnership or corporation which will engage in the design of small roadway and bridge projects. The source of the projects, which would be attained through the bidding procedure, would be the Commonwealth of Pennsylvania, municipalities as well as the private sector. You may, in the alternative, accept employment with a private consulting engineering firm engaged in the above described activities in the capacity of roadway and bridge design construction inspection. You have requested the advice of the State Ethics Commission as to any prohibition that may be imposed by virtue 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 Pennsylvania Department of Transportation, hereinafter Pennflot, 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 Kotalik, 84 -007; Montgomery, 84 -004; Leone, 86 -523. 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: 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. Mr. Joseph A. Mitchell March 11, 1986 Page 3 Initially, to answer your request we must identify the "governmental body" with which you were associated while working with PennDot. 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 Commission, 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 Di strict 10 -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 PennDot, 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 PennDot. 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 public 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 public employer. See Anderson, 83 -014; Zwikl, 85 -004. 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 behalf of any person i ncludi ng but not limited to the fol1owi ng activities: personal appearances, negotiating contracts, lobbying, and submitting bid 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 prohibit: Mr. Joseph A. Mitchell March 11, 1986 Page 4 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 the District; 3. Participating in any matters before the District over which you had supervision, direct involvement, or responsibility while employed by PennDot; 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 bid, if submitted to or reviewed by the District, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave PennDot, you should not engage in the type of activity outlined above. 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. 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, 80 -056 and Beaser, 81 -538. Conclusion: As a Civil Engineer IV, you are to be 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 10 -0. Mr. Joseph A. Mitchell March 11, 1986 Page 5 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. JJC /sfd 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. Since J. Co o Gener / ounsel