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HomeMy WebLinkAbout88-587 GramlingMr. Wade L. Gramling, P.E. 400 Deerfield Road Camp Hill. PA 17011 Dear Mr. Gramling: 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 15, 1988 83 - 587 Re: Former Public Employee; Section 3(e), Civil Engineer 5, Penn Dot This responds to your letter of May 10, 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 are currently in the position of Chief of the Division of Roadway Management, hereinafter Division, in the Bureau of Bridge and Roadway Technology in the Pennsylvania Department of Transportation, hereinafter Penn Dot, as a Civil Engineer 5. You then state after your retirement on May 11, 1988 you plan to become employed by a firm which would provide engineering and technical services, equipment and system development to private and governmental agencies. You then express two concerns that you have regarding your future employment. First, after noting that you would have occasion to represent yourself or your new employer before Penn Dot, you request advice as to what restrictions would apply in that situation. Secondly, you state that you may have to perform activities as part of an existing contract between your new employer and the National Research Council which is a private self governing agency in that such activities may occur in Pennsylvania and would consist of conducting physical distress surveys on. Pennsylvania highways. In the second situation, you Mr. Wade Gxemling June 15, 1988 Page 2 also would like to apprised of what restrictions may apply regarding your activities with Penn Dot concerning that specific contract. As Chief of the Roadway Management Division, your duties and responsibilities consist of the following: planning., directing, supervising and administering the activities of the Division; directing the staff of professional and technical and specialized employees; establish:Lng and maintaining statewide standards and quality assurance controls as to the roadway management .systems; coordinating the Department's roadway management system operation with districts, counties and central offices; developing and directing a program to perform pavement evaluation tests and the collection of information relative thereto; developing and recommending pavement designs; developing raw data and indices needed by the ASHMA formula to distribute highway maintenance allocations; collecting and processing roadway information and data to generate analyses and reports, managing and directing research de slopment demonstration and experimental activities relative to pavement performance; identifying training needs; engaging in activities to evaluate and implement the latest technology related to pavements and roadways, planning supervising and administering special project activities; functioning as a consultant and performing such other duties as are required in your position. As a Roadway Management Division Chief for Penn Dot, 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. 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 euriioyee Mr. Wade L. Gramling June 15, 1988 Page 3 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 as while working Penn Dot. 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 1 minsvlvania, 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 Division. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Division. Therefore, within the firs year after you would leave Penn Dot, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Division. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Division. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from Penn Dot. 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, 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. M'. Wade L. Gramling June 15, 1988 Page 4 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 ox public employee. 51 Pa. Code S1.1. 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 Division), including, but not limited to, negotiations or renegotiations on contracts with the Division; 2. Attempts to influence the Division; 3. Participating in any matters before the Division over which you had supervision, direct involvement, or responsibility while employed by Penn Dot; 4. Lobbying, that is representing the interests of any person or employer before the Division 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 Division, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave Penn Dot, 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 Division, is not prohibited as "representation." See Kotalik, Opinion 84 -007). You may, assist in the preparation of any documents presented to the Division so long as you are not identified as the prep,irer. You may also counsel any person regarding that person's appearance before the Division. Once again, however, your activity in this respect should not be revealed to the Mr. Wade L. Gramling June 15, 1988 Page 5 Division. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Division to aecure information which is available to the general public. See glitt, 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 Division your representation of, or work fr yonr new employer. Finally, the Commission has .. concl d 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 Lind Beaser, Advice 81 -538. The above represents the restrictions of Section 3(e) in terms of your conduct before your former governmental body after you begin your new employment. Further, as to the existing contract held by you employer with the National Research. Council, Section 3(e) would not prohibit your performing activities on that contract subject to the above outlined restrictions. Section 3 b of the Ethics Act •rovides: (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). 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. Mr. Wade L. Gramling June 15, 1988 Page 6 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 Actt Conclusion: As a Roadway Management Di'risio - :. Chief, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with Pcnr^ I ",c' , -ou would become a "former public employee" subject to the r <ost ions illaposed by Section 3(e) of the Ethics Act.. r?.;; vic , c ` c.:' /duct should conform to the requirements of the Ethics AG t- :dined above. Your governmental body for the purpose of ale one year representation restriction is the Division. Laatly, the propriety of your proposed conduct has only been addressed under the Ethics Act. 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 trrthfully all the material facts and committed the acts complained of in reliance on the Advice giver. such. This letter is a public record and will be made available as 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 . Dopko, General Counsel