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HomeMy WebLinkAbout86-533 BillyMr. Kenneth J. Rilly 111 Endilch Avenue Mount Penn, PA 19606 Dear Mr, Rilly: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 April 4, 1986 ADVICE OF COUNSEL 86 - 533 Re: Former Public Employee; Section 3(e), Real Estate Specialist II, Pennsylvania Department of Transportation This responds to your letter of March 5, 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 on November 13, 1985, you retired from state service. While employed by the state, you served in the Pennsylvania Department of Transportation as a Real Estate Specialist II. In that capacity, you were assigned to the right -of -way unit in District 5 -0 in Allentown, Pennsylvania. In your position with the Department of Transportation you performed various functions and duties which are generally outlined in your job description and classification specification (1722) which we have reviewed and which are hereby incorporated by reference. Your duties included the following responsibilities and functions: 1. Performing property research and investigation. 2. Discussing right -of -way acquistion procedures with mortgage companies. 3. Field site inspections with respect to real estate which might he acquired for public purposes. Mr. Kenneth J. Billy April 4, 1986 Page 2 4. Acting as liaison with plans, surveys, soils, and engineering units concerning the property to be acquired. 5. Assisting and effecting claim settlements, including meeting with property owners to inform them of their rights, managing, protecting and selling Commonwealth acqui red property. This function also includes reviewing and analyzing right -of -way projects and claim status reports and preparing summary reports recommending action to expedite right -of -way projects. 6. Removing encroachments from right -of -way, preparing testimony and testifying in legal procedures to enforce the Outdoor Advertising and Junk Yard Programs. This latter function includes contacting real estate owners for removal of outdoor advertising devices, screening or removal of other encroachments within the prescibed distances of right -of -way. These duties are essentially conducted to enforce and effect control of an Outdoor Advertising and Junk Yard Program. You have advised that the firm of 0. R. Colan Associates has offered you a position in a similar capacity to the position which you held with the Pennsylvania Department of Transportation. You have, therefore, requested the advice of the State Ethics Commission as to any prohibitions that may be placed upon your anticipated employment possibilities under 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 Real Estate Specialist I I for the Pennsylvania Department of Transportation, hereinafter PennDot, 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 rni nimus on the interests of another person. See Smith, 84 -607; (85 -015); Weiser, 85 -579. 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: Mr. Kenneth J. Billy April 4, 1986 Page 3 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. 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 exercised within District 5 -0, hereinafter the District . Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the District generally. 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: Mr. Kenneth J. Billy April 4, 1986 Page 4 Section 1.1. Definitions. Representation - -- Any act on behalf of any person i ncludi ng but not limited to the following 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: '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 Ki l areski , 80 -054. Therefore, within the first year after you leave PennDot, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the District, is not prohibited as "representation." See Kotalik, 84 -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 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. Mr. Kenneth J. Billy April 4, 1986 Page 5 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 Real Estate Specialist II, 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 5 -0, Allentown, Pennsyl vani a. 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 followi ng your termi nation 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, providi ng 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 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. Si nc i no Gener. Counsel