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HomeMy WebLinkAbout88-654 ReedMr. R. Craig Reed 3615 Golfview Drive Mechanicsburg, PA 17055 Re: Former Public Employee; Section 3(e), PennDot, Civil Engineer IV Dear Mr. Reed: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 29, 1988 88 -654 This responds to your letter of October 11, 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, hereinafter PennDot. Facts: You state that you contemplate resigning from PennDot and that you will become employed by PASCO USA Inc. You state that the firm is not presently under contract with PennDot but is engaged in the National Strategic Highway Research Program (SHRP). After stating that you may be required to contact PennDot in this regard, you seek advise as to what restrictions would be imposed upon you relative to any future business with PASCO under the Ethics Act. In your current position as a Civil Engineer IV in PennDot, you are assigned to the Roadway Management Services Division, hereinafter Division in the Bureau of Bridge and Roadway Technology. From your job description which is incorporated herein by reference, you have the following duties and responsibilities: To plan, organize and direct all activities relative to the implementation and operation of the Roadway Management System (RMS); to develop training to the Central Office Bureau and the district engineering offices as well as supervising and providing consulting services to RMS in the Central Office and engineering districts; to direct and maintain the RMS computer hardware; to direct the collection of data and its entry relative to the RMS system; to identify and plan for system enhancement; to coordinate work with outside consultants; Mr. R. Craig Reed November 29, 1988 Page 2 to review and approve technical system support documentation; to coordinate RMS system with other department systems; to supervise professional and technical staff and to perform such other duties and responsibilities based upon your knowledge of engineering management computer system principles. Discussion: As a Civil Engineer IV 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. S402; 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 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 RMS Division and Engineering Districts. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be RMS Division and Engineering Districts. Therefore, within the first year after Mr. R. Craig Reed November 29, 1988 Page 3 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 RMS Division and Engineering Districts. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the RMS Division and Engineering Districts. 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 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 RMS Division and Engineering Districts), including, but not limited to, negotiations or renegotiations on contracts with the RMS Division and engineering districts; 2. Attempts to influence the RMS Division and Engineering Districts; Mr. R. Craig Reed November 29, 1988 Page 4 3. Participating in any matters before the RMS Division and Engineering Districts 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 RMS Division and Engineering Districts 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 RMS Division and engineering districts, 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 RMS Division and Engineering Districts, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the RMS Division and Engineering Districts so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the RMS Division and Engineering Districts. Once again, however, your activity in this respect should not be revealed to the RMS Division and Engineering Districts. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the RMS Division and Engineering Districts to secure information which is available to the general public. See Cil *t, Opinion 79 -023. This, of course, must not be otherwise make known to the RMS Division and Engineering Districts 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. Additionally, it is noted that Section 3(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position Mr. R. Craig Reed November 29, 1988 Page 5 has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). Conclusion: As a Civil Engineer IV, 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 RMS Division and Engineering Districts. 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 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. cerely, Vincent Dopko, General Counsel