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HomeMy WebLinkAbout91-576 SolomonMr. Paul J. Solomon R.D. #1 Box 282 Montoursville, PA 17754 Dear Mr. Solomon: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 9, 1991 91 -576 Re: Former Public Employee; Section 3(g); PennDOT; Civil Engineer Manager - General; Soils Engineer. This responds to your letter of August 2, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Soils Engineer classified as a "Civil Engineer Manager - General" following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: Having retired from the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT ") on June 28, 1991 to take advantage of the early retirement window, you seek the advice of the State Ethics Commission with regard to your prospective employment opportunities. Upon your retirement, you had been the District 3 -0 Soils Engineer for the past twenty -six years. District 3 -0 covers nine counties: Bradford, Columbia, Lycoming, Montour, Northumberland, Snyder, Sullivan, Tioga and Union. You have been discussing employment opportunities with an engineering consultant in the Williamsport area, who has done engineering work for municipalities and for PennDOT. Many of these projects have utilized funds from liquid fuel funds, federal programs, and various state and local programs. You note that the firm presently has an engineering agreement with PennDOT Districts 2 -0 and 5 -0 and intends to bid on a similar agreement with District 3 -0. Additionally, the engineering firm offers services to other state and federal agencies. You characterize your duties at PennDOT as including all phases of subsurface -problems and/or design criteria which you exemplify as including: Mr. Paul J. Solomon September 9, 1991 Page 2 1. Slope stability analysis, both cut and fill, both for design and for monitoring, analyzing and correcting existing slope problems. 2. Foundation analysis and design for various types of bridges, box culverts, pipes, embankments, etc. 3. Analyzing ground water problems. 4. Analyzing mine subsidences, mining excavations encountered and acid mine water problems. 5. Supervision of several drilling crews. 6. As the pavement engineer - recommending and reviewing pavement designs and completing the annual HPMS update. 7. Trouble shooting compaction control when needed. 8. Writing reports on any of the above items. 9. Review of any of the above items submitted by engineering consultants doing work for the Department or local municipalities. However, except for reviewing their geotechnical submissions you had no part in selecting these firms, or monitoring any of their other activities, or disbursement of funds to them. This is the function of the consultant liaison unit within the Department. You request the guidance of this Commission on your proposed activities with the engineering firm as a Geotechnical Engineer. You specifically inquire as follows: 1. Whether you may market and offer your services to PennDOT in other districts outside of District 3 -0? 2. The scope of your limitations in District 3 -0? 3. What, if any, limitations would be imposed upon your working with municipalities that would utilize Federal Highway Funds, state funds or liquid fuel funds in District 3 -0 or outside of District 3 -0? and 4. Whether there would be any limitations on offering your services to othet.state, federal or local agencies in District 3 -0 or outside of District 3 -0? Mr. Paul J. Solomon September 9, 1991 Page 3 Copies of your most recent job description with organizational chart and your job specification have been obtained from PennDOT, all of which documents are incorporated herein by reference. It is noted your job description and job specification indicate your class title as a "Civil Engineer Manager - General." Discussion: As a Soils Engineer classified as a "Civil Engineer Manager - General" 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 this Commission. 65 P.S. Section 402; 51 Pa. Code Section 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. 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. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. Initially, to answer your request the governmental body with which you were associated while working with PennDOT must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation " must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been Mr. Paul J. Solomon September 9, 1991 Page 4 associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would be PennDOT, including but not limited to District 3 -0. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90-009 - R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with PennDOT, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis PennDOT. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the .,.entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Mr. Paul J. Solomon September 9, 1991 Page 5 Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental . body with which you were associated is PennDOT, including but not limited to District 3 -0. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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 governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or -other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also Mr. Paul J. Solomon September 9, 1991 Page 6 interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to PennDOT so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before PennDOT. Once again, however, the activity in this respect should not be revealed to PennDOT. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of PennDOT to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former - governmental -- body - -or to otherwise make known to that body the representation of, or work for the new employer. Thus, in response to your specific inquiries, the Ethics Law would not prohibit your accepting prospective employment with the engineering consultant. However, your conduct would be restricted as set forth above. You could not engage in any - conduct, including-but-not- limited - -to. marketing, which -would constitute "representing" any person - including but not limited - to the engineering firm - before your former governmental body. The restrictions as applied to you would not be limited to District 3 -0 but rather would encompass all of PennDOT. However, Mr. Paul J. Solomon September 9, 1991 Page 7 the restrictions would not extend beyond PennDOT to . municipalities, federal or local agencies, or state agencies other than PennDOT. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. 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 Soils Engineer classified as a "Civil Engineer Manager - General "for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are to I3e 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, including but not limited to District 3 -0. The restrictions as to representation outlined above must be followed. However, the restrictions of Section 3(g) of the Ethics Law would not extend beyond your former governmental body to municipalities, federal or local agencies, or state agencies other than 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 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. Mr. Paul J. Solomon September 9, 1991 Page 8 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 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 J. Dopko Chief Counsel