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HomeMy WebLinkAbout91-590-S CasnerDear Mr. Casner: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 23, 1991 Mr. Donald C. Casner, P.E. R.D. #3 Box 1532 Mifflintown, PA 17059 91 -590 -S Re: Former Public Employee; Section 3(g); PennDOT, Bureau of Bridge and Roadway Technology; Chief of Engineering Technology Division, Senior Civil Engineer Manager; Conflict; Use of Authority of Office or Employment; Supplemental Advice. This responds to your letters of September 11, 1991 and December 14, 1991, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a former Chief of the Engineering Technology Division of the Bureau of Bridge and Roadway Technology in the Department of Transportation ("PennDOT "), following termination of service with PennDOT, with regard to returning to PennDOT as a part -time employee of the Commonwealth of Pennsylvania to perform emergency, part -time research work comparable to that of a project engineer in the Evaluation and New Products Section. Facts: Following a letter of request of September 11, 1991, Advice of Council 91 -590 was issued which is incorporated herein by reference. That Advice concluded that upon termination of service as Chief of the Engineering Technology Division of the Bureau of Bridge and Roadway Technology in the Department of Transportation ( "PennDOT "), in which position you are classified as a Senior Civil Engineer Manager, 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 the Bureau of Bridge and Roadway Technology. By letter dated September 11, 1991 you have requested a supplemental advisory regarding Advice of Counsel 91 -590. Mr. Donald C. Casner December 23, 1991 Page 2 Your supplementary request notes that since your receipt of Advice 91 -590, certain circumstances have changed forcing you to request additional advice. It has been brought to your attention that part -time work for PennDOT may be available, to assist in reducing a large backlog of work at a lower level than your present position. You note that in performing such part -time work you would have no decision - making authority. Your specific inquiry is whether this part -time employment would in any way affect the one year representation restrictions of Section 3(g) of the Ethics Law, as discussed in the prior Advice. You note that'you would in no way want to jeopardize your position as a consultant. This Commission requested further clarification regarding the status in which you would perform the proposed part -time work for PennDOT. You submitted a second letter dated December 14, 1991. This second letter clarified that the proposed part -time work would be performed as emergency, part -time work, in the capacity of a part -time employee of the Commonwealth of Pennsylvania and specifically not as a consultant. You note that such part -time work is as provided in Act 1991 -23, known as the "Mellow Retirement Incentive Bill." Should part -time work become available and you accept, you ask whether the one -year period of applicability for restrictions under Section 3(g) would cease to run, which would in effect extend the prohibition period for longer than one year. If so, you state that you would not elect to accept part -time work. You provided additional facts in a telephone conversation with Assistant. Council for this Commission on December 17, 1991, with the understanding that these additional facts would be incorporated in this supplemental Advice. The additional facts focus upon the nature of the part -time work which you are proposing to do at some point following termination of your present employment with PennDOT. You have advised that there are approximately thirty unfinished research reports dating back to the 1980's which need to be completed. These reports would involve a variety of subjects including, for example, drainage systems or pavement projects, but the reports would generally regard the viability of various products or techniques for PennDOT's use. The object of such reports would be to see whether PennDOT should buy or use such products or technologies. Most of the data needed to complete the reports is already in the files, although there would be some information which you would have to go to the field to obtain. You have explained that for various reasons, including employee turnover and project prioritization, these Mr. Donald C. Casper December 23, 1991 Page 3 research projects were not completed so as to get them "off the books." The Federal Highway Administration requires that the report documentation be completed before PennDOT receives a substantial amount of funds. Some time ago, you suggested bringing back retirees to complete these research projects. You do not know if this solution you suggested will actually take place after your service with PennDOT terminates. You have already committed to acting as a part -time consultant for a private entity, but you would like to help PennDOT with these research projects if that is possible. Although there is not a particular job description in place for such part -time work, you have submitted copies of a job description for the position of a project engineer in the Evaluation and New Products Section, classified as a Senior Civil Engineer - Transportation; a job classification specification for a Civil Engineer 3, which you have noted is now a Senior Civil Engineer; and a related organizational chart, all of which documents are incorporated herein by reference. You have stated that the job description would very closely follow the work that you anticipate would be available after your separation from PennDOT, through this part -time research work. You have stated that you would have no authority in any way in the proposed part -time research position, although you have acknowledged that the reports which you would prepare could affect which products /techniques would be used by PennDOT. You doubt that it would be possible for you' to slant the reports in any particular way, for two reasons. First, you state that most of the actual decisions related to these products have already been made and it is just the documentation which needs to be completed. Second, the reports must be approved by three people, including the Section Head, the Division Chief, and the Bureau Director. Still, you admit that the reports definitely could affect the contracting choices made by PennDOT. Furthermore, the reports would be circulated to the Federal Highway Administration, all PennDOT district offices, various libraries and the like in the usual manner in which PennDOT circulates such reports. Based upon all of the above, you request a supplemental Advice from this Commission. Discussion: Upon termination of public service as Chief of the Engineering Technology Division of the Bureau of Bridge and Mr. Donald C. Casner December 23, 1991 Page 4 Roadway Technology at PennDOT, classified as a Senior Civil Engineer Manager, 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 -590 and are incorporated herein by reference. They will not be repeated, but will only be supplemented by noting for your information that in a recent Opinion issued by the Commission, Shay, Opinion 91 -012, the Commission held that the restrictions of Section 3(g) would prohibit the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to his former governmental body, even though the invoices pertained to a contract which existed prior to termination of public service. The focus of this supplemental Advice shall be directed toward the new aspect of the inquiry which you have raised, specifically the prospect of your returning to work for PennDOT as a part -time employee. There are two provisions of the Ethics Law, Sections 3(a) and 3(g), which would be implicated by your supplemental inquiry. The application of these provisions to your question will be considered separately. Section 3(a) of the Ethics Law Provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: ,section 2. Definitions. Mr. Donald C. Canner December 23, 1991 Page 5 "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Section 3(a) of the Ethics Law would prohibit the use of the authority of public office or employment, or confidential information received by holding public office or employment, for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or for any business with which he or a member of his immediate family is associated. Thus, Section 3(a) would specifically prohibit you from using the status of your public employment or your activities to advance an opportunity of future employment with PennDOT and /or to eliminate any potential competitors who would be competing with you for such a part -time employment position with PennDOT Mr. Donald C. Casner December 23, 1991 Page 6 See, Wall Advice 90 -567 as to advancing private employment opportunities). It is noted that you have acknowledged that it was your suggestion to bring back retirees to PennDOT to do the unfinished research projects as part -time employees. The fact that this was your idea would not, in and of itself, rise to the level of the use of authority of office to obtain a private pecuniary benefit. However, you could not design such a program so as to further your own chances at filling a slot with PennDOT in such a part -time employment status. Reference is made to this concern under the Ethics Law not to imply that there has been or will be any transgression of Section 3(a) but merely to provide a complete response to the question you have presented. Turning now to the application of Section 3(g) to your supplemental inquiry, as a part -time employee of PennDOT performing research projects within the parameters of the incorporated job description which you have provided, you would be considered a "public employee" within the definition of that term as set forth in the 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. You would, in effect, become a "public employee" again, subject to all of the restrictions and requirements of the Ethics Law which apply to public employees. Furthermore, PennDOT would no longer be a governmental body with which you had been associated, as encompassed within Section 3(g), because you would be renewing that association with that very same governmental body. The restrictions of Section 3(g) would at that point cease to apply to you. However, Section 3(g) would apply to you each and every time you become a "former public employee," and each time for a full one -year period. The Ethics Law does not limit the number of times Section 3(g) may apply to a particular individual. Should you terminate your employment with PennDOT again, albeit part -time employment, you would once again become a "former public employee" and the restrictions of Section 3(g) of the Ethics Law would apply to you again. The one year period of applicability would begin anew, for a full one year period from the date of termination of your part -time employment. Mr. Donald C. Casner December 23, 1991 Page 7 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 the Chief of the Engineering Technology Division of PennDOT's Bureau of Bridge and Roadway Technology, 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, including but not limited to the Bureau of Bridge and Roadway Technology. The restrictions as to representation outlined in Advice 91 -590 and above must be followed. The one year period of applicability of Section 3(g) will commence anew each time you become a "former public employee." Following termination of your present position, should you later accept part -time employment with PennDOT in a research position as described above, you would once again be considered a "public employee" as defined in the Ethics Law, subject to all of the restrictions and requirements which pertain to a "public employee." Upon termination of such part - time employment with PennDOT, you would once again become a "former public employee" subject to Section 3(g) of the Ethics Law, and the one -year period of applicability of Section 3(g) would commence at that time, and would continue for a full year from the termination of such part -time employment. The propriety of the proposed conduct has only been addressed under the Ethics Law. such. 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. 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 Mr. Donald C. Casner December 23, 1991 Page 8 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 S2.12. Sincerely, Vincent J. Dopko Chief Counsel