HomeMy WebLinkAbout87-590 Carpenter•
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
a
June 22, 1987
ADVICE OF COUNSEL
87 -590
Richard 0. Carpenter
Box 377 -C, RD 4
Carlisle, PA 17013
Re: Former Public Employee; Section 3(e), Pennsylvania Department of
Transportation
Dear Mr. Carpenter:
This responds to your letter of May 25, - 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 have indicated that on April 1, 1987 you retired from the
Pennsylvania Department of Transportation, hereinafter Department. You
indicate that you are currently negotiating employment with a small company
which will be performing subcontract work for a consultant which does
construction inspection work for the Department. You have requested advice as
to what restrictions the Ethics Act imposes upon you regarding contacts with
the Department in your new employment.
From you job classification and description, which are incorporated
herein by reference, it appears that you, as a civil engineer, independently
perform preliminary engineering studies, location or foundation
investigations, plan and specification preparation, relative to the location,
design, or construction of roads, bridges, buildings, flood control projects,
mine reclamation projects, recreational structures and facilities, and any
other civil engineering projects, transportation planning or traffic control
of highways. As part of your duties you are the construction engineer for
less complex projects and the assistant to a higher level engineer on more
complex projects. Your position places emphasis upon the application of a
broad knowledge of engineering principles and practices to a variety of
engineering projects. Your work assignments are made by a technical
supervisor who provides general instructions, offers assistance in difficult
problem areas and reviews completed work.
Richard 0. Carpenter
June 22, 1987
Page 2
Regarding work orders, it is your responsibility to review the orders to
ensure that they are necessary relative to the conditions encountered on a
given project which might not have been anticipated in the design stage. The
work orders are reviewed by you to ensure that they are justified and
documented. You also review the labor equipment and the material estimates
and notify a given district of any work order deficiencies. Requests for
extensions or adjustments of contract time are reviewed by you to determi ne
whether they are justified, and if so, to determine whether there should be a
conversion from controlling working days to calendar days. You also prepare
c anputer generated reports for all division operations and coordinate the
division computer activities with the system's management center and the other
bureaus and department organizations. You remain current in the area of
canputer expertise so as to provide effective support to division engineering
and administrative functions. You also review district approvals of
contractor requests for payment of stored material. You also maintain
appropriate records so as to compile management reports and perform various
other miscellaneous duties as required by the Development.
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 for the Department, 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
econami c impact is greater than de minimus on the interests of another person.
See Kennedy, 86 -588.
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.
Richard 0. Carpenter
June 22, 1987
Page 3
Initially, to answer your request its is necessary to identify the
"governmental body" with which you were associated while working with the
Department. Then, the scope of the prohibitions associated with the concept
and term of "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
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 the Bureau of. Construction and
Materials, hereinafter the Bureau. Thus, the "governmental body" with which
you have been "associated" upon the termi nation of your employment would be
the Bureau. Therefore, within the first year after you would leave the
Department, Section 3(e) of the Ethics Act would apply and restrict your
"representation" of persons or new employers vis-a-vis the Bureau.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Bureau. 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 1imi ted to .the fol lowi ng activi ties:
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.
Richard 0. Carpenter
June 22, 1987
Page 4
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 Bureau), including, but not
limited to, negotiations or renegotiations on contracts with the Bureau;
2. Attempts to influence the Bureau;
3. Participating in any matters before the Bureau 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 Bureau in relation to legislation, regulations, etc. See
Russell, 80 -048 and Seltzer, 80 -044.
The Commission has also held that preparing and signi ng a proposal,
document or bid, or listing your name as the person who wi l l provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
the Bureau, constitutes an attempt to influence your former governmental body.
See Ki l areski , 80 -054. Therefore, within the first year after you leave the
Department, 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
Bureau, is not prohibited as "representation." See Kotalik, 84 -007).
You may, assist in the preparation of any documents presented to the
Bureau so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Bureau. Once
again, however, your activity in this respect should not be revealed to the
the Bureau. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Bureau 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 Bureau your
representation of, or work for your new employer.
Finally, the Commission has concluded that if you
existing contract as opposed to negotiating or renegot
activities would not be prohibited by the Ethics Act.
Beaser, 81 -538.
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
c official from a
offered based upo
or official, whil
such offer. See
are administering an
iating a contract, your
See Dalton, 80 -056 and
State Ethics Act would
ccepting a position of
n the understanding that
e working for his former
65 P.S. §403(b).
Richard 0. Carpenter
June 22, 1987
Page 5
4 w.
Conclusion: As a Civil Engineer II, you 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 the Bureau.
•
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 Commi ssion, and evidence of good faith
conduct in any other civi 1 or crimi nal proceedi ng, 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 wi
challenge same, you may request
personal appearance before the C
Opinion from the Commission w i l l
writing, to the Commission withi
to 51 Pa. Code 2.12.
th this Advice or if you have any reason to
that the full Commi ssion review this Advice. A
ommission will be scheduled and a formal
be issued. Any such appeal must be made, in
n 15 days of service of this Advice pursuant
Sincerely,
Vincent J.`Dopko
General Counsel