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HomeMy WebLinkAbout94-528 WhiteFrank White P.O. Box 383 Waymart, PA 18472 94 -528 Re: Public Employee /Official, PIS, Conflict, Public Employee, Surveyor Technician 1, Section 3(g). Dear Mr. White: March 17, 1994 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL This responds to your letter of February 14, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon employment of Surveyor Technician 1 following termination of service with the Department of Transportation. Facts: You were employed by the Department of Transportation (PennDOT). Conti Enterprises desires to hire you but has requested that you obtain official release from the State Ethics Commission. You state that you were also told that you must be officially released from PennDOT before you can pursue other employment opportunities. You have enclosed a copy of your job description and Statement of Temporary Employment. The job description states that a Surveyor Technician 1 works as a member of a survey party involved in all types of surveying operations; acts as a target man on survey corps erecting prisms on telescoping stakeout roads; carries equipment weighing 0 -10 pounds and objects weighing up to 25 pounds; lifts objects up to 50 pounds; works in various terrain including steep slopes and swamp areas and under various weather conditions; uses brushing and trimming tools; assists in placing of prisms used in Electronic Distance Measuring equipment; places stakes to fix survey points; determines location data to be placed on stakes; works in heavy traffic conditions; communicates by hand signals to other workers; and performs other related duties as required. Discussion: The question that first must be answered is whether you, in your capacity as a Surveyor Technician 1 for PennDOT, would White, Prank, 94 -528 March 17, 1994 Page 2 be considered a public employee as that term is defined in the Ethics Law. It is noted that this advisory relies on your job description which you have provided. The primary question to be answered is whether you are to be considered a "public employee" as that term is defined in the State Ethics Law: 65 P.S. §402. Section 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a non - ministerial nature with regard to: contracting or procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting, licensing, regulating or auditing any person; or any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. Based upon the definition of "public employee" and in light of the job description for the position, it is concluded that you are not to be considered a "public employee" as that term is defined in the State Ethics Law. This conclusion is based upon an objective review of this information from which it appears that you are not responsible for taking or recommending official action of a non- ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee." Thus, because you are not within the classification of the term "public employee ", you would not be subject to the State Ethics Law, subject to Sections 3(b) and 3(c), ,infra. White, Frank, 94 -528 March 17, 1994 Page 3 Accordingly, since you are not a public employee, you would not be subject to the provisions of Section 3(g) of the Ethics Law. That Section states as follows: such. 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. 65 P.S. S403(g). Thus, in applying the Ethics Law to this case, you would not be prohibited or restricted from commencing employment with Conti Enterprises in any manner. However, Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value 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. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: In the position of Surveyor Technician 1 with PennDOT, you are not to be considered a public employee as defined in the State Ethics Law. Under the Ethics Law, you would not be prohibited or restricted from commencing employment with Conti Enterprises. Sections 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 White, Frank, 94 -528 March 17, 1994 Page 4 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787- 0806). cerely, Vincent J. opko Chief Counsel