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HomeMy WebLinkAbout88-611 WurstaMr. Philip W. Wursta 1911 Arch Street Philadelphia, PA 19103 Dear Mr. Wursta: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 15, 1988 88 - 611 Re: Former Public Employee; Section 3(e); Civil Engineer II; Pennsylvania Department of Transportation This responds to your letter of June 2, 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 as of March 16, 1988, you terminated your employment with the Pennsylvania Department of Transportation, hereinafter PennDot, and are now employed in the transportation industry with Pennoni Associates Inc. of Philadelphia. You state that you were involved with District 6 -0 Traffic Engineering Unit, hereinafter District, wherein your duties consisted of traffic signal design. After advising that you were not involved in decisions on state projects which might create a conflict of interest, you then state that the prohibition under the Ethics Act may limit your current employers competitiveness regarding bids on state projects because your current job duties include review and design of traffic signals and site development plans. You conclude by requesting that the prohibition against working on state projects for one year be waived. Although your job description is unavailable at this point in time, this Commission has received a photo copy of the classification specification for an Civil Engineer II which is incorporated herein by reference. An individual in that position performs the following duties and responsibilities: Mr. Philip W. Wursta July 15, 1988 Page 2 "Definition: This is professional work in the field of civil engineering. An employe 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. 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. 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 the "governmental body" with which you were associated while working PennDot must be identified. Then, the scope of the prohibitions associated with Mr. Philip W. Wursta July 15, 1988 Page 3 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 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. 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 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. Mr. Philip W. Wursta July 15, 1988 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 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 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. Mr. Philip W. Wursta July 15, 1988 Page 5 Finally, administering renegotiating by the Ethics 81 -538. the Commission has concluded that if you are an existing contract as opposed to negotiating or a contract, your activities would not be prohibited Act. See Dalton, Opinion 80 -056 and Beaser, Advice Regarding your request that the prohibition of Section 3(e) be waived for you, please be advised that Section 3(e) is a statutory restriction imposed upon former public officials /employees and may not be waived. See Obelmelias, Advice 88 -575. 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). 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 Mr. Philip W. Wursta July 15, 1988 Page 6 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 your proposed conduct has only been addressed under the Ethic 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 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 . Dopko, General Counsel