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HomeMy WebLinkAbout91-529-S StinsonDear Mr. Stinson: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 27, 1991 Mr. Richard W. Stinson 91 -529 -S 725 Broadway Bangor, PA 18013 Re: Former Public Employee; Section 3(g); PennDOT; Transportation Construction Manager, III, Supplemental Advice This responds to your letter of May 7, 1991, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Law, the restrictions presented upon your employment following termination of service with the Pennsylvania Department of Transportation (PennDOT) as a Transportation Construction Manager, III, would prohibit your performing the job duties of Assistant ' " Construction Engineer for Urban Engineers', Inc. and whether your name could appear on payroll records presented by your prospective employer to PernDOT. Facts: Following your letter of request dated March 1, 1991, Advice of Counsel 91 -529 was issued which is incorporated herein by reference. That advice concluded that as a Transportation Construction Manager, III for PennDOT, you are to be considered a public employee as defined in the Ethics Law and as such, you are subject to the restrictions of the Ethics Law. You were advised that upon termination of your employment with PennDOT, the restrictions of Section 3(g) would apply to you as a . "former public employee ". The advice clearly set forth the restrictions of Section 3(g) and reviewed prior Commission decisions interpreting the term "representation ". By letter dated May 7, 1991, you seek a supplemental advisory regarding Advice of Counsel 91 -529. Your supplementary request focuses upon particular types of conduct which would be involved in performing the duties of your prospective position as Assistant Construction Engineer for Urban Engineers, Inc., with regard to determining whether such conduct would constitute Mr. Richard W. Stinson Page 2 "representation" under the Ethics Law or otherwise be prohibited by the Ethics Law. You have submitted a letter dated May 6, 1991 from Mr. Joseph P. McAtee, Vice President of Urban Engineers, Inc., addressed to you which letter is incorporated herein by reference. You have asked that the Commission review the facts stated in the incorporated letter and clarify the following issues for you: 1. Because there is an existing contract to which you would be assigned, coupled with the fact that your job description does not include seeking new contracts or renegotiating existing contracts, and would include your writing correspondence for others' signatures, analyzing contractor documents and counselling other individuals who are staff members employed by Urban Engineers, Inc. on the Construction Management Consulting Services Agreement with PennDOT, whether such conduct would constitute "representation" prohibited under the Ethics Law; 2. Whether your proposed job the Ethics Law is meant to includes the type of conduct prohibit. The underlying facts which you set forth in the incorporated letter following job description: Job Description It is proposed that Mr. Stinson serve as an Assistant Construction Engineer working under staff members employed by Urban Engineers, Inc. on our Construction Management Consulting Services Agreement with PADOT for the I -476 Mid - County Expressway Project (Blue Route). In this role, Mr. Stinson would perform services, principally on the Section 200 Contract. This Contract is presently behind schedule with the contractor submitting a significant amount of letters requesting clarification for unforeseen conditions and alleged design discrepancies together with a large number of requests for additional payment for extra and additional work. Also, there have been a large number of requests for additional time due to job circumstances the contractor believes are not his responsibility. Mr. Stinson's role would be to provide support to the present Construction Engineer in reviewing delays to the project as they may affect the critical path of the project, reviewing and compiling back -up have asked us to review, as from Mr. McAtee, include the Mr. Richard W. Stinson Page 3 information to address contractor "Request for Information (RFI) and compile data in a manner that would allow preparation of correspondence by the CMC staff for PADOT's signature. From time to time, information will be developed by Mr. Stinson to serve as back -up for the CMC's staff recommendation to PADOT regarding the acceptability of various contractor change orders or additional time requests. All work by Mr. Stinson would be performed directly under the supervision of an existing CMC staff member. Mr. Stinson would not be identified as the author of any such correspondence, etc. Mr. Stinson would be at our Blue Route Satellite Office, where, from time to time, job meetings are held with PADOT personnel, but Mr. Stinson would not take part in such meetings during the first year, nor would documents prepared by him be identified as such. At no time would Mr. Stinson be required or requested to make presentations at the District or Central Office relative to any job activity or proposed project. Also, Mr. Stinson would not sign any correspondence which may be directed to PADOT. The contract which Mr. Stinson will be working on is an existing contract Urban Engineers, Inc. has with PADOT. This contract has been ongoing for four years and is in a different district than Mr. Stinson's. It is contemplated that Mr. Stinson's assignment on this project would continue on this project for the first year of his employment. Mr. Stinson would not be involved in seeking new work from PADOT. Mr. Stinson's name would only appear on payroll records. Letter of May 6, 1991 at 1 -2 (Emphasis added). Having set forth the above facts, Mr. McAtee characterizes the issue before this Commission as whether, based upon the above description of your duties and employment situation, it is acceptable that you work- for Urban Engineers, Inc. during the first year of your employment after retiring from PennDOT. Discussion: As a Transportation Construction Manager, III for PennDOT, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of the Commission. 65 P.S. 402; 51 Pa. Code 1.1. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. The restrictions of Mr. Richard W. Stinson Page 4 Section 3(g) of the Ethics Law have been set forth in the prior Advice 91 -529, incorporated herein. Turning to your specific inquiries, you first ask whether the fact that you would be assigned to an existing contract would preclude any of your conduct being deemed to constitute "representation" under the Ethics Law. As a general principal, the mere fact that there is an existing contract to which you would be assigned is not sufficient in and of itself to remove your prospective conduct from the purview of the prohibitions of the Ethics Law. Prior decisions of the Commission under the former Ethics Act held that public employees could administer contracts previously awarded to their new employers but could not negotiate a new contract or changes in the existing contract. Dalton, Opinion 80 -056; Hever, Opinion 89 -015. Although recognizing that the former public employee could not negotiate changes in an "existing contract ", the Commission was not presented with the specific issue of such changes being required or disputes occurring. In this case, it is clear that the circumstances which you have presented go beyond a theoretically pure administration of an existing contract. Given the substantial, on -going problems with the underlying contract for which Urban Engineers, Inc. is serving as a consultant, the volatility of the situation raises the reasonable likelihood that changes will be needed with regard to your prospective employer's contract with PennDOT, placing you in an adversarial posture with your former governmental body and in a representative capacity on behalf of the private employer. However, it appears from all of the submitted facts, that your role would be to provide support to the present Construction Engineer, and that you would work directly under the supervision of existing staff members employed by Urban Engineers, Inc. on the Construction Management Consulting Services Agreement with PennDOT. The job description set forth by Mr. McAtee, in the incorporated letter of May 6, 1991, emphasizes that you would not be identified as the author of any correspondence which may be directed to PennDOT; you would not take part in any meetings with PennDOT personnel during the first year following your termination with that governmental body; and documents prepared by you would not be identified as such. Furthermore, Mr. McAtee assures that you would not be required to make any presentations "at the District or Central Office" relative to any job activity or proposed project (This advice expressly assumes and is conditioned upon Mr. McAtee's assurances applying without regard to location of such meetings, presentations, etc.). Furthermore, Urban Engineers, Inc. assures that you would not sign any correspondence directed to PennDOT. You would not be involved in seeking new work from PennDOT. Such proposed conduct would conform to the restrictions of Section 3(g) of the Ethics Law. Mr. Richard W. Stinson Page 5 However, Mr. McAtee's letter also states that your name would appear on payroll records. Although Mr. McAtee does not elaborate as to the extent to which such payroll records could be disclosed to PennDOT, the fact that he mentions that your name would appear on payroll records in the context of discussing nondisclosure to PennDOT clearly suggests that such payroll records would be made available to PennDOT. Any such disclosure of payroll records containing your name to PennDOT during the first year following termination of your service with the governmental body would transgress the prohibitions of Section 3(g) of the Ethics Law. An obvious concern would be the possibility that your association with PennDOT in your former public employment could be used - even inadvertently - to secure for yourself or your new employer, treatment or benefits that may only be obtainable because of your association with your former governmental body. Were your name to be included on payroll records submitted to PennDOT in the form of an invoice, for example, PennDOT could subject such an invoice to a less rigorous review based upon its familiarity with you, your abilities, and /or experience as a former public employee. Upon gaining knowledge of your employment with Urban Engineers, Inc. and your': involvement with its projects, the special treatment or benefits which could.conceivably be afforded to you and your new employer could extend beyond reviewing invoices to awarding contracts or reviewing performance under contracts with PennDOT. As clearly stated in the prior advice which was issued to you: ...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 governmental body. Stinson, Advice 91 -529 at 4. There is no doubt that the inclusion of your name on the payroll records submitted to PennDOT would be with your knowledge and would constitute action on behalf of your new employer. The definition of the term "represent" would clearly include submitting your name to PennDOT on payroll records as prohibited conduct. Mr. Richard W. Stinson Page 6 Therefore, given the specific prohibitions of Section 3(g) of the Ethics Law, as well as the Commission's interpretations of that Section, you must not engage in any conduct which would constitute representation of your new employer before PennDOT during the one year period after leaving PennDOT. Your name may not appear on payroll records - or any other materials, for that matter - submitted on behalf of your prospective employer to PennDOT. The Ethics Law would in no way prohibit your accepting employment with Urban Engineers, Inc.; rather, it would only restrict your conduct during the first year following your termination of employment with PennDOT. Furthermore, the Ethics Law would not prohibit a billing for your services being submitted to PennDOT, as long as your identity is not disclosed in any way. Thus, an invoice containing payroll records billing for the time of the "Assistant Construction Engineer" without including your name or any other specific information which would identify you to PennDOT, could be submitted to PennDOT without transgressing the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Transportation Construction Manager, III, with the Pennsylvania Department of Transportation (PennDOT), you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDOT, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is PennDOT. The restrictions as to representation outlined above must be followed. Your name and /or other specific information which would identify you to PennDOT may not be included on payroll records or any other materials submitted on behalf of your prospective employer to PennDOT, during the first year following your termination of service with PennDOT. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and Mr. Richard W. Stinson Page 7 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. This letter is a public record and will be made available as such. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent . Dopko, Chief Counsel