HomeMy WebLinkAbout87-584 RitcheyJames J. Ritchey
R.D. 1, Box 49
Duncansville, PA 16635
STATE ETHICS COMMISSION -
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
June 3, 1987
ADVICE OF COUNSEL
87 -584
Re: Former Public Employee, Section 3(e), Transportation Construction
Inspector II, Department of Transportation
Dear Mr. Ritchey:
This responds to your letter of May 15, 1987, wherein you requested an
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, hereinafter the Department. You
indicate that you are contemplating an early retirement and are planning to
undertake employment with a consulting firm which does business with the
Department. You have requested the advice of the State Ethics Commission as
to whether there would be any prohibition to accepting employment and secondly
whether there would be any conflict of interest should you undertake such
employment.
In your current position with the Department, you are a Transportation
Construction Inspector II. In this regard, you are required as part of your
duties to perform technical work relative to inspections of road or bridge
construction projects and also are required to serve as the lead inspector in
non- complex construction phases of larger projects. As part of your duties
you are required to interpret contracts through analysis of specifications and
drawings. Your duties involve resolving specifications, drawings or
construction problems encountered by lower level inspectors. You may also be
required to inspect existing bridges as part of the Commonwealth- Federal
Bridge Inspection Program. Your job description indicates that you perform a
variety of independent technical duties regarding the inspection of materials
and workmanship on highway construction projects to ensure conformance with
contract requirements and established specifications. In particular, you
James J. Ritchey
June 3, 1987
Page 2
independently inspect all phases of the highway construction, including
checking grades, elevations and stakeouts. You also make mathematical
calculations to test for consistency of materials used. In your inspections
you monitor the progress and quality control reports associated with the work
being performed. Assistance on testing of materials is also provided by you as
well as the inspection of work being done on portions of the construction
project relative to the alignment and placement of drainage and pipes, and the
placement of concrete and bituminous surface materials. After you have
analyzed contract requirements, you are responsible for conveying that
information to contractors and subordinates. You also instruct subordinates
regarding the testing and sampling methods and explain inspection techniques
to be followed. The foregoing is a summarization of your classification
specification and your job description which documents are incorporated herein
by reference. Your work in relation to the Department is performed in
District 9 -0.
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 Inspector II for the Department, you are
to be considered a "public employee" within the definition of that term as set
forth in the Ethics Act. 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 minimous on the interest 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) provides as follows:
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(e).
James J. Ritchey
June 3, 1987
Page 3
Initially, to answer your request the "governmental body" with which you
were associated while working with the Department must be identified. Then,
the scope of the prohibitions associated with the term "representation" must
be reviewed. 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 v. 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 with District 9 -0. Thus,
the "governmental body" with which you have been "associated" upon termination
of your employment would be District 9 -0, hereinafter the District. Therefore,
within the first year after you would leave the Department, Section 3(e) 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 the Department. It is noted, 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:
James J. Ritchey
June 3, 1987
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 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 the
Department;
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 si
document or bid, or listing your name as the person who
assistance on such proposal, document, or bid, if submi
the District, constitutes an attempt to influence your
body. See Kilareski, 80 -054. Therefore, within the fi
leave the Department, you should not engage in the type
above.
gning a proposal,
will provide technical
tted to or reviewed by
former governmental
rst year after you
of activity outlined
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.
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.
James J. Ritchey
June 3, 1987
Page 5
Additionally, we note that Secti
prohibit any public employee or publi
employment if said position has been
the official conduct of the employee
governmental body, was influenced by
on 403(b) of the State Ethics Act would
c official from accepting a position of
offered based upon the understanding that
or official, while working for his former
such offer. See 65 P.S. §403(b).
Conclusion: As a Transportation Construction Inspector II, you are to be
considered a "public employee" as defined in the Ethics Act. Upon termination
of your service with the Department, 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
servi ce.
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.
Sincerely,
Vincent J. Dopko
General Counsel