HomeMy WebLinkAbout86-545 TooleyMr. Charles Tooley, P.E.
PennUot
District 3 -U
Montoursville, PA 177b4
Dear Mr. Tooley:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
April 29, 1986
ADVICE OF COUNSEL
86 -545
Re: Former Public Employee; Section 3(e), Civil Enyineer 1II, Pennsylvania
Department of Transportation
This responds to your letter of March 28, 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 f ollowiny your termination of service with the
Pennsylvania Department of Transportation.
Facts: You advise that effective April 16, 1986, you will be terminatiny your
position as a Consultant Liaison Engineer with the Pennsylvania Department of
Transportation. You have served in this position for a number of years and
have been assiyned to District 3 -U. In your position as a Consultant Liaison
Engineer you are classified as a Civil,Engineer I11. Generally, in your
position with the Pennsylvania Department of Transportation, you acted as a
consultant liaison on assigned highway design projects. In this respect, you
participated in the desiyn, preparation and plans for the most complex
projects in the district. Generally, you acted as a contact with consultants
who had been awarded contracts. You were involved in field reviews in
conjunction with the development of design details, you reviewed plans and
materials prepared by consultants. You also reviewed the proyress beiny made
on particular projects and you provided guidance with reyard to departmental
policies and district requirements. You were responsible for maki ny
appropriate recommendations concerniny completed work prior to the submission
Mr. Charles Tooley, P.E.
April 29, 1986
Page 2
to the central office. You represented the district at hearings, meetings,
and with the public as required in conjunction with assigned projects and you
performed other related duties as required. We have reviewed both your
current job description as well as the classification specification (1113) for
the position that you held while employed by the department. These documents
have been incorporated herein by reference.
Upon retirement, you'll begin employment with Urban Engineers,
Philadelphia, Pennsylvania, in a position of a highway designer. You advise
that the firm of Urban Engineers has no projects currently pending in District
3 -0 and that you will be working generally on projects that Urban Engineers
has obtained through PennDot. The main project upon which you will be working
is the Blue Route in Philadelphia which is a District 6 -0 Project. You advise
that you gave never had Urban Engineers as one of the project consultants with
which you are involved while employed by PennDot. You have now requested the
advice of the State Ethics Commission as to any restrictions that may be
imposed upon you within the purview 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 III /Consultant Liaison Engineer 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 minimus on the interests of another person.
See Lugar, 85 -594; Leone, 86 -523.
Consequently, upon termi nation 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. Charles Tooley, P.E.
April 29, 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 exercised within District 3 -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; Zwi kl , 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 followi 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. Charles Tooley, P.E.
April 29, 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 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 i nqui ries of the Di strict 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.
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.
Additionally, we note that Section 403(b) of the State Ethics Act would
prohibit any public employee or public official from accepting a position of
employment if said position has been offered based upon the understanding that
the official conduct of the employee or official, while working for his former
governmental body, was influenced by such offer. See 65 P.S. §403(b).
Mr. Charles Tooley, P.E.
April 29, 1986
Page 5
Conclusion: As a Civil Engineer III /Consultant Liaison Engineer, 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. Ysur
governmental body for the purpose of the one year representation restriction
is District 3 -0.
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 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, 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 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
ohn
0
Gene Counsel