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HomeMy WebLinkAbout94-616 DavisRobert M. Davis R.D. 1, Box 386 Olyphant, PA 18447 Dear Mr. Davis: Facts: As Commonwealth ( "PennDOT "), Commission. 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 30, 1994 94 -616 Re: Former Public Employee; Section 3(g); Assistant District Bridge Engineer; PennDOT. This responds to your letters of September 15, 1994 and September 22, 1994 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 an Assistant District Bridge Engineer following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. an Assistant District Bridge Engineer for the of Pennsylvania, Department of Transportation you request an advisory from the State Ethics You have submitted a copy of your most recent job description, which document is incorporated herein by reference. Following a thirty -three (33) year career, you plan to retire from PennDOT District 4 -0 on or before December 30, 1994 through a special retirement window. You seek an advisory regarding your proposed employment as a consultant inspector on the Lackawanna Valley Industrial Highway. The Lackawanna Valley Industrial Highway is a Commonwealth highway that is presently under contract. You have provided detailed information on the Lackawanna Valley Industrial Highway design, the involvement of your District Bridge Unit in its review, and the remaining available inspection positions. The Lackawanna Valley Industrial Highway was designed in four (4) major sections. There was a separate design consultant for each section: Gannett Fleming for Section 291 that has over fifty (50) structures; Michael Baker for Section 292 that has approximately six (6) structures; Buchart Horn for Section 293 that Davis, Robert M., 94 -616 September 30, 1994 Page 2 has approximately five (5) structures; and SAI Inc. for Section 294 that has three (3) structures. The consulting firm of Sanders & Thomas, Inc. was selected to do the design review of all the submissions, both roadway and bridge, for all four sections of the Lackawanna Valley Industrial Highway. However, for the bridge designs your central office (Bridge Quality Control Division) and your District Office Bridge Unit gave review comments to Sanders & Thomas, Inc. The bridge design review procedure in your District office was as follows: 1. Section 291 was assigned to Greg Wilson, bridge squad leader, for review. 2. Section 292 and Section 293 were assigned to Bill Lesek, bridge squad leader, for review. 3. Section 294 was assigned to Fu Yuan Wang, bridge squad leader, for review. The squad leaders would meet with your District Bridge Engineer, Foster C. Sankey, to get his concurrence on their comments on the day before his central office weekly meeting. The central office weekly meeting was attended by the consultant who designed that particular section, Sanders & Thomas Inc., FHWA, representatives from your central office (Bridge Quality Control Division), Foster Sankey and the district squad leader who reviews that section. Your involvement in this process consisted of the following: 1. Section 291 a. Bunker Hill Bridge -- Because of the need for inspection on this major bridge, you did a review to decide if a better inspection walkway could be installed. b. construction section (S01 of Section 291): Reviewed the location of a high voltage PP &L power line to the bridge parapet; reviewed the location of an existing sewer line. c. Blakely Street and Reeves Street (both in construction Section WEl of Section 291) -- Review the consultant mining engineer report in a district office review meeting with Foster Sankey, Greg Wilson (squad leader) and Mike Czar (District Davis, Robert M., 94 -616 September 30, 1994 Page 3 Mining Engineer). 2. Section 292: No involvement in structure plan review. 3. Section 293: No involvement in structure plan review. 4. Section 294: No involvement in structure plan review. The bridge plans were approved by the Chief Bridge Engineer in your central office with the exception of a few structures which were approved by your District Bridge Engineer, Foster Sankey. There are only three construction inspection positions that are presently open on the Lackawanna Valley Industrial Highway: the SO1 section of Section 291 (you note that the Design Section 291 was divided into five (5) construction sections, specifically, S01, WE1, East Leg, North Leg, and MA1), Section WE1 of Section 291 and Section 294. The Section of the Lackawanna Valley Industrial Highway that you are considering for inspection is under the consultant inspection contract of L. Robert Kimball, Inc. of Ebenburg, Pennsylvania. L. Robert Kimball has the consultant inspection contract for all of the Section 291 construction sections. The Section 294 consultant inspection contract is under a different consultant, specifically the Maguire Group of Pittsburgh, Pennsylvania. You have never had any professional or personal dealings with the Maguire group or with L. Robert Kimball, Inc. or its employees. Furthermore, you were never involved in the selection of L. Robert Kimball, Inc. or any other company for construction inspection. Based upon all of the above, you request an advisory as to the applicability of the Ethics Law to your circumstances. Discussion: As an Assistant District Bridge Engineer for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are 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. §402; 51 Pa. Code §11.1. 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 minimis on the interests of another person. Consequently, upon termination of public service, you would Davis, Robert M., 94 -616 September 30, 1994 Page 4 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 have been 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 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 will have been associated upon termination of public service would be PennDOT in its entirety, including but not limited to District 4 -0, your District Office Bridge Unit, and the Bridge Quality Control Division. 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 Davis, Robert M., 94 -616 September 30, 1994 Page 5 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 in its entirety, including but not limited to District 4 -0, your District Office Bridge Unit, and the Bridge Quality Control Division. 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. 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 have been associated is PennDOT in its entirety, including but not limited to District 4 -0, your District Office Bridge Unit, and the Bridge Quality Control Division. 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 Davis, Robert M., 94 -616 September 30, 1994 Page 6 association with his former governmental body. In respect to the one year restriction against such "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. The Commission, in Popovich, Opinion 89 -005, has also 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 by 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. In Shay, Opinion 91 -012, the Commission held that 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 the former governmental body, even though the invoices pertained to a contract which existed prior to termination of public service. 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 Davis, Robert M., 94 -616 September 30, 1994 Page 7 to PennDOT. However, you may not be identified on documents submitted to PennDOT. 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. 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. In Confidential Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. Furthermore, 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 anything 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 been 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 an Assistant District Bridge Engineer for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are considered a "public employee" as defined in the Ethics Law. Upon termination of service with PennDOT, you will Davis, Robert M., 94 -616 September 30, 1994 Page 8 become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body would be PennDOT in its entirety, including but not limited to District 4 -0, your District Office Bridge Unit, and the Bridge Quality Control Division. The restrictions as to representation outlined above must be followed. 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. 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 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. Aay 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 513.2(h) . The appeal may be received at the Commission by hand delivery, United States mail, delivery-service, or by FAS transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. erely, incent Dopk Chief Co . =e1