HomeMy WebLinkAbout87-519 DurstDonald R. Durst
1809 Cambria Avenue
Windber, PA 15963
Dear Mr. Durst:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: 1717) 783 -1610
March 12, 1987
ADVICE OF COUNSEL
87 -519
Re: Former Public Employee; Section 3(e), Transportation Construction
Inspection Supervisor, Department of Transportation.
This responds to your letter of February 6, 1987, 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 requested the advice of the State Ethics Commission regarding your
future employment activities upon the termination of service with the
Pennsylvania Department of Transportation. You indicate that you are
considering retiring in the near future and are planning to undertake
employment possibilities with a local paving contractor. In the alternative,
you may become involved as an inspector for a consultant firm. You've
requested the advice of the State Ethics Commission in relation to whether
there would be any conflict of interests should you undertake such employment.
In your current position with the Pennsylvania Department of Transportation,
you are a Transportation Construction Inspection Supervisor in the Department
of Transportation's Construction Division. In this respect, the
responsibilities include supervisory work in construction inspection. An
employee in your class supervises the inspection of materials and workmanship
on a moderately complex road or bridge construction project. Work requires
the interpretation of contract requirements through analysis of specification
and drawings and the application of a variety of testing and inspection
techniques. Work involves planning and organizing work, assigning work,
reviewing work performance, evaluating employee performance, interviewing and
recommending employee's selection, reviewing and answering grievances.
Assignments require independent judgement in making minor on -bite technical
decisions. In addition, you are responsible for insuring that`.construction is
in conformance with approve construction codes, plans and specifications. As
a project inspector you prepare periodic cost estimates and progress reports
summarizing in detail the work project activities, including records of a
labor material and equipment used. We have reviewed your classification
specification, Number 1063 and your job description and have incorporated
those documents herein by refence. You work in relation to the Department of
Transportation most performed in District 9 -0.
Donald R. Durst
March 12, 1987
Page 2
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 Transportation Construction Inspection Supervisor for the 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
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 Bauer, 86 -540 .
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.
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 9 -0.
Thus, the "governmental body" with which you have been "associated" upon the
termination of your employment would be District 9 -0, hereinafter 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.
Donald R. Durst
March 12, 1987
Page 3
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
including 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 Russel], 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.
Donald R. Durst
March 12, 1987
Page 4
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 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 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.
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).
Conclusion: As a Transportation Construction Inspection Supervisor, 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 9 -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 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.
Donald R. Durst
March 12, 1987
Page 5
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.
ohn J ontino
Act g General Counsel