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HomeMy WebLinkAbout91-576-S 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 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 17, 1991 91 -576 -S Re: Former Public Employee; Section 3(g); PennDOT; Civil Engineer Manager - General; Soils Engineer; Supplemental Advice. This responds to your letter of September 27, 1991, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether the restrictions of the Public Official and Employee Ethics Law, which are applicable to you as a former Soils Engineer classified as a "Civil Engineer Manager - General" for PennDOT, would restrict you in performing duties for an engineering firm which contracts with PennDOT, which duties would be strictly limited to measuring and recording field data, part of which is the examination of core borings. Facts: Following a letter of request of August 2, 1991, Advice of Counsel 91 -576 was issued which is incorporated herein by reference. That Advice concluded that upon termination of service as a Soils Engineer classified as a "Civil Engineer Manager - General" for PennDOT, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. Your former governmental body was determined to be PennDOT, including but not limited to District 3 -0. The Advice determined that 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. By letter dated September 27, 1991 you have requested a supplemental advisory regarding Advice of Counsel 91 -576. Your supplementary request notes that since the writing of your August 2, 1991 letter, circumstances have changed in two respects. You are now employed by the Williamsport engineering consulting firm referenced in your prior inquiry, and that firm Mr. Paul J. Solomon October 17, 1991 Page 2 has now been granted an engineering agreement with PennDOT District 3 -0. You acknowledge that Advice 91 -576 was straightforward and understood except for one area which you now ask this Commission to clarify. You cite the next to last paragraph on page 6 of Advice 91- 576 which provided: 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. Solomon, Advice 91 -576 at 6. You assert your interpretation of the above portion of Advice 91 -576 as allowing you to secure information that is available to the general public - which you believe would include "core borings" - as long as you do not make your affiliations known to influence PennDOT. You state that since the marketing has been done; the contract has been secured; and a geotechnical engineer (other than yourself) has been secured and he will make all public appearances, recommend changes in the drilling program, and make the design recommendations, there is nothing left for you to influence. Your duties would be strictly limited to measuring and recording field data, part of which is the examination of the core borings to record the rock unit boundaries, rock type, angle and 'roughness of fracture planes, etc. You state that there is no monetary gain or loss to either PennDOT or the consulting firm if you are permitted to function in this limited capacity. The only monetary gain or loss is for yourself. If you can legally perform these limited duties of measuring and collecting data, you have a chance for employment. If you can not legally do this, you state that you will be denied the opportunity for employment at this time. You have provided additional facts in a telephone conversation with Assistant Counsel for this Commission on Mr. Paul J. Solomon October 17, 1991 Page 3 October 10, 1991, with the understanding that these additional facts would be incorporated in this supplemental Advice. The additional facts focus upon your duties with the engineering firm and the extent to which they would involve PennDOT and /or its personnel. You have explained that the project involves the proposed relocation of Route 15 on lands which are not yet owned by PennDOT. Drill crews are present at these lands some of the time. Although most PennDOT Districts hire drilling consultants, the District which is involved in this particular project, District 3 -0, has its own drill crew which could potentially be at the site should you attempt to perform your duties there. You have explained that in trying to design the slope, you must examine core borings. This particular project would require over 100 core borings. You have stated that it is most efficient to examine the core borings on site as the rock is coming out. However, you have posed the following three alternatives by which you could examine the core borings: (1) Examining the core borings on the field as the drill crew fills the drill boxes, which could be a spot check occurring approximately twice per week, and which you feel would be most efficient; (2) Examining the core borings at PennDOT's storage building after they are removed from the field, which stored core borings are available for public examination but only upon obtaining permission from PennDOT personnel and a key to the storage building from a PennDOT employee; or, (3) Examining the core boxes at a "neutral site" where they could be delivered either by PennDOT or by the engineering firm. You have explained that if a consulting firm is located far from a site, it is not uncommon for the firm to take the core borings to its office for examination. As for delivery to a neutral site by PennDOT, you state that PennDOT would probably drop the core borings off if the location was not "out of the way." You have stressed that it is better for your purposes to examine the core borings on the field as the rock is coming out, rather than having to examine these heavy borings after they are stacked at the PennDOT storage building. However, some of the older core borings are already in storage at the PennDOT storage building, and those could not be examined on site. Thus, you Mr. Paul J. Solomon October 17, 1991 Page 4 have clarified that if alternative number three above does not occur, alternatives one and two both have to take place. Finally, you have emphasized your belief that at this stage of the project, there is nothing for you to influence and the sole question is whether you can do this work and get paid for it. If you can not do this work, someone else must do it. Based upon all of the above, a supplemental Advice has been requested. Discussion: Upon termination of public service as a Soils Engineer classified as a "Civil Engineer Manager - General" for PennDOT, 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. The general restrictions of Section 3(g) have been fully discussed in Advice 91 -576 and are incorporated herein by reference. They will not be repeated, but rather, the focus of this supplemental Advice shall be directed toward the narrow issue which you have raised. You have expressly represented that the examination of core borings as well as the performance of your other described duties would involve publicly available information but under the first two alternatives which you have proffered, would require contact with PennDOT personnel. The third alternative would not require your contact with PennDOT or its personnel. Given that the information which you seek to access is publicly available, the Ethics Law would not inherently prohibit your examination of such publicly available information. However, your conduct in accessing such information would be restricted as stated in Advice 91 -576. The restrictions are designed to prevent your involvement being made known to PennDOT. With this in mind, the first alternative which you have proposed would not conform with the requirements of the Ethics Law. Obviously, your presence on site Mr. Paul J. Solomon October 17, 1991 Page 5 and your probable interaction with PennDOT personnel would establish your involvement on behalf of your new employer. The second alternative, whereby you would go to the PennDOT storage building to examine the core borings, would be permissible unless your involvement on behalf of your new employer would be disclosed through such conduct. For example, if the only core borings in the storage building related to your employer's project(s), or if to gain access to the core borings you would be required to disclose which core borings you were going to examine, which project was involved, and /or the identity of your employer, your conduct would contravene Section 3(g) of the Ethics Law. The third alternative would be permissible, as long as your involvement in the project would not be used to obtain deliveries by PennDOT to the neutral site. It seems unlikely that PennDOT routinely delivers core boxes to other sites, and so this supplemental Advice is expressly conditioned upon the assumption that no special arrangements have been or would be made to accommodate your involvement on behalf of your new employer. You have expressed your belief that at this stage of the contract proceedings, you could have no influence as a former public official /employee. To the contrary, the restrictions of Section 3(g) must be observed even at the present stage of your employer's contract with PennDOT. Your employer could still receive preferential treatment from PennDOT - even if unintentionally - as a result of your involvement with your new employer. For example, PennDOT's review of your new employer's work could be less rigorous based upon your involvement in the project. Your firm's invoices for services rendered could be subjected to less scrutiny as well. Furthermore, potential disputes could arise between your former governmental body and your new employer. You would be required to refrain from conduct constituting "representation" before your former governmental body such as, for example, defending your employer's performance of its contractual duties. There is no doubt that your conduct must be governed by the restrictions of Section 3(g) of 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. Mr. Paul J. Solomon October 17, 1991 Page 6 Conclusion: Upon termination of service with PennDOT as a Soils Engineer classified as a "Civil Engineer Manager - General," you became 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 in Advice 91 -576 and above must be followed. The Ethics Law would prohibit you from performing the duties of your new employment on project sites where PennDOT personnel are present. You would be permitted to access publicly available information at the PennDOT storage building subject to the condition that through such conduct you would not directly or indirectly disclose your involvement on behalf of your new employer. You would be permitted to examine core boxes at a neutral site conditioned upon the assumption that the transportation of the core boxes to the neutral site would not involve accommodations by PennDOT based upon your involvement on behalf of your new employer. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, in that your service has terminated, you are reminded that the Ethics Law 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. 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, 04i Vincent . Dopko Chief Counsel