HomeMy WebLinkAbout88-575 ObelmejiasMr. Yajaira L. Obelmejias
649 S. Henderson Road
King of Prussia, PA 19406
STATE ETHICS COMMISSION "
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 3, 1988
88 - 575
Re: Former Public Employee; Section 3(e), Civil Engineer II,
PennDot
Dear Mr. Obelmejias:
This responds to your letter of April 20, 1988, 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 state that you will be discontinuing your
employment with the Pennsylvania Department of Transportation,
hereinafter PennDot, so that you may obtain a continuation of
your H -1 Working Visa. After stating that the Civil Service
Commission cannot support your current status, you advise that
employment with a private consultant will result in the
necessary extension. After noting that your present duties in
the District 6 -0 Traffic Engineering Unit, hereinafter District,
involve the review of site development plans submitted by
outside developers, you state that you are not involved in any
State projects or decisions on those projects which would
represent a conflict of interest and request a waiver of the one
year restriction under section 3(e) of the Ethics Act. You state
your belief that the prohibition of section 3(e) would limit your
job offers with consultants and you ask for a waiver only to
enhance your opportunities for private employment. You state
that you anticipate that your new job will involve the
preparation of traffic studies for different types of
developments, some drainage calculations, some site development
plans and highway design.
Mr. Yajaira L. Obelmejias
June 3, 1988
Page 2
From your job description /specification which is
incorporated herein by reference, it appears that the duties and
responsibilities of a Civil Engineer II are defined as follows:
"This is professional work in the field of civil
engineering. An employee in this class performs a variety
of engineering duties associated with the location, design,
or construction of roads, bridges, buildings, flood control
projects, mine reclamation projects, recreational structures
and facilities, or other civil engineering projects,
transportation planning, or traffic control of highways.
Work involves independently performing preliminary
engineering studies, conducting location or foundation
investigations, preparing plans and specifications, serving
as construction engineer on the less complex projects, or
assisting a higher -level engineer on substantial portions of
complex projects. Emphasis is placed upon the application
of a broad knowledge of engineering principles and practices
to varied and comprehensive engineering projects. Work is
assigned with general instructions and objectives by a
technical supervisor who provides assistance when difficult
problems are encountered and reviews completed work for
adherence to sound engineering practices."
As to your specific duties your main responsibility and
working time relates to reviewing highway occupancy permit
applications for access to shopping centers, malls, office
complexes, industrial parks, residential developments and
various other buildings and facilities. As part of the above,
you review traffic safety, traffic volume generation and its
directional distribution, highway design, highway and driveway
construction, maintenance and protection of traffic plans,
drainage decisions, evaluation of traffic signal warrants,
engineering and traffic studies, and such other duties and
responsibilities as are required in your position.
Discussion: As a Civil Engineer II for 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. 5402; 51 Pa. Code S1.1. 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.
Mr. Yajaira L. Obelmejias
June 3, 1988
Page 3
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. S403.
Initially, to answer your request it is necessary to
identify the "governmental body" with which you were associated
while working PennDot. 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,
Opinion 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 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 firs
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. 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
Mr. Yajaira L. Obelmejias
June 3, 1988
Page 4
benefits that may be obtainable only because of his association
with his former public employer. See Anderson, Opinion 83 -014;
Zwikl, Opinion 85 -004.
In respect to the one year representation 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 employee.
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, Opinion 80 -048 and
Seltzer, Opinion 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, Opinion 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
Mr. Yajaira L. Obelmejias
June 3, 1988
Page 5
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,
Opinion 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, Opinion 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, Opinion 80 -056 and Beaser, Advice
81 -538.
Regarding your request for a waiver of the one year
restriction, Section 3(e) of the Ethics Act is a statutorily
mandated restriction and there is no basis in statutory or
decisional law for the waiver of that provision.
Section 3(b) of the Ethics Act provides:
(b) No person shall offer or give to a public
official or public employee or candidate for
public office or a member of his immediate
family or a business with which he is
associated, and no public official or public
employee or candidate for public office shall
solicit or accept, anything of value,
including a gift, loan, political
contribution, reward, or promise of future
employment based on any understanding that
the vote, official action, or judgment of the
public employee or candidate for public
office would be influenced thereby. 65 P.S.
403(b).
Mr. Yajaira L. Obelmejias
June 3, 1988
Page 6
Section 3(b) of the Ethics Act must be referenced in order
to provide a complete response to your inquiry. Under Section
3(b) of the Ethics Act cited above, which a public official or
employee must observe, a public official or employee must neither
offer nor accept anything of value on the understanding or with
the intention that his judgment would be influenced thereby. It
is assumed such a situation does not exist here. This Section is
referenced not to indicate that any such activity has been or
will be undertaken but in an effort to provide a complete
response to your inquiry.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act; the applicability of any other
statute, code, ordinance, regulation or other code of conduct
other than the Ethics Act has not been considered in that they do
not involve an interpretation of the Ethics Act.
Conclusion: As a Civil Engineer II, you are to be considered a
"public employee" as defined in the Ethics Act. Upon termination
of your service with PennDot, 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 District. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
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.
• such.
This letter is a public record and will be made available as
Mr. Yajaira L. Obelmejias
June 3, 1988
Page 7
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 former 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