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HomeMy WebLinkAbout98-534-S KocherRonald D. Kocher 403 Lynnewood Rd. Watsontown, PA 17777 Dear Mr. Kocher: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 28, 1998 98 -534 -S Re: Former Public Employee; Section 3(g); Transportation Construction Manager 2; PennDOT; Supplemental Advice. This responds to your letter of April 30, 1998 by which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Transportation Construction Manager following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: As to a February 29, 1998 letter of request for an advisory, Advice of Counsel 98 -534 was issued to you on March 24, 1998. The facts as set forth in the Advice are incorporated herein by reference. By your letter of April 30, 1998, you attached a letter by David J. McTish of MKA Consulting Engineers (MKA) dated April 17, 1998 and concluded that your employment with MKA would not be contrary to the Advice of Counsel 98 -534. In McTish's letter, reference is made to a letter to PennDOT District 3 -0 requesting approval to utilize your services based upon certain clarifications. McTish states that you will be a non - billable employee who will review the performance of MKA staff as to the technical aspects of each construction assignment. You will also verify that the MKA inspection staff has all equipment, publications and other material required for each project so as to provide efficient and effective service. You will also verify communications from the MKA office with each inspector and convey PennDOT or MKA procedures for each project. In order to perform such tasks, MKA seeks approval to have you meet with MKA employees at construction field offices and on construction sites. You will not conduct any discussions with PennDOT employees at the field office or PennDOT District office as per the Advice of Counsel. Further, you will not conduct any business at the PennDOT District Office or any location where MKA employees are not present. McTish summarizes that the above is a clarification of MKA's intent in utilizing your services so that MKA may have the opportunity for Kocher, 98 -534 -S May 28, 1998 Page 2 reconsideration of your employment responsibilities for PennDOT during your first year of retirement. You ask for a review of your prospective position with MKA. Discussion: Advice of Counsel 98 -534 is incorporated herein by reference as if fully set forth herein. The scope of this Advice will be limited to addressing the specific question which you have posed. As to the questions posed which have been answered and explained in the prior Advice, you are advised to refer to that Advice of Counsel. As to your inquiry of whether you may work for MKA on PennDOT projects under the above circumstances, the proposed activity would be permissible under Section 3(g) of the Ethics Law provided your actions do not constitute representing MKA before PennDOT. As noted in the Advice of Counsel 98 -534, the statutory definition of the term "represent" in the Ethics Law is very broad and encompassing: 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. McTish in his letter states that you will be a non - billable employee who will not conduct any discussions or business with PennDOT employees at the field or PennDOT District Office. Based upon the factual assumption, as represented by McTish, that you will not engage in any such activities, that is, you will not have personal appearances or any type of interaction with PennDOT personnel, as delineated in the definition of "represent" and as explained in Advice 98 -534, you would not be prohibited from engaging in such MKA employment vis -a -vis PennDOT. As a matter of caution, it would seem that it is likely at some point in time you may run afoul of Section 3(g) of the Ethics Law because even with the attempt to insulate you from PennDOT contacts, circumstances may arise where you will have such contacts so as to be representing MKA before PennDOT. This is not to suggest that you would intentionally engage in such conduct, but rather to point out the possibility that your working for MKA vis -a -vis a PennDOT projects can create a situation where any interaction with PennDOT personnel by you could constitute prohibited "representation of MKA. Conclusion: Supplementing Advice of Counsel 98 -534, you are a former public official /employee and must comport your conduct to conform to the requirements of Section 3(g) of the Ethics Law set forth in Advice of Counsel 98 -534 as further delineated above. 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. Kocher, 98 -534 -S May 28, 1998 Page 3 This letter is a public record and will be made available as such. 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 thirty (30) 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). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. rely, scent `j l opko Chief Cou sel