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HomeMy WebLinkAbout86-009 LarsonKenneth C. Larson, Jr. P.E. R.D. #4, Box 200 Montoursville, PA 17754 Dear Mr. Larson: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDED AUG 2 0 1986 MAILEDAyG 2 &4 6 86 -009 Re: Former Public Employee; Section 3(e), District Engineer, Pennsylvania Department of Transportation This responds to your letter of May 28, 1986, in which you requested the opinion of the State Ethics Commission. You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination,,of service with the Pennsylvania Department of Transportation. You have recently terminated your employment with the Pennsylvania Department of Transportation where you served as a District Engineer. There are eleven engineering districts in the Department of Transportation and each engineering district is supervised by a district engineer. You were in charge of District 3 -0. Generally, the duties and responsibilities of a district engineer are set forth in the job specifications and position classification. A district engineer supervises all individuals who are employed in the particular district of which he is in charge. The district engineer is responsible for all activities within a highway engineering district and these activities are characterized by highly complex engineering projects with wide public impact. Work involves administering the planning, development and implementation of Kenneth C. Larson, Jr. P.E. Page 2 all highway engineering construction and maintenance programs with emphasis on achieving public acceptance. Supervision is exercised over individuals who are engaged in location, design, construction and maintenance of roads, bridges and related structures. The district engi neer di rects all programming, budgeting, personnel assignments, material acquisitions, equipment transfers, equipment maintenance, administrative reporting and all operation functions of the district. He consults with central office personnel regarding matters pertaining to highway and bridge design, construction and maintenance activities. He maintains contact with public officials and private individuals in the assigned district. Administratively, a district engineer is responsible to the Deputy Secretary for Highway Administration and reports directly to this individual. District engineers also may serve upon other committees as necessary. We have reviewed the job descrition and classification specification for this position and have incorporated those documents herein by reference. In addition to the foregoing, district engineers also serve as members of the Pennsylvania Department of Transportation's Consultant Selection Committee which selects consultants to perform work for department projects. There are five members to this Committee; four of them are permanent members. The fifth member is the district engineer from the district wherein the project is to be conducted. This district engineer serves with the other four members to select an appropriate consultant. Generally, the consultant selection originates at the district level where the district engineer reviews, along with a local consultant selection committee, all of the potential consultants. The district engineer then relays this information to the Central Consultant Selection Committee and makes a recommendation for the selection of a particular consultant based upon his review and expertise. You have advised us that the district engineer, who serves on the consultant selection committee has recommendation authority as well as a vote on the final selection. You advise that the recommendations of the district engineer are accepted by the consultant selection committee in about 70% of the cases. You advise that you have been discussing employment opportunities with engineering consultants that have done engineering work for municipalities in the Commonwealth of Pennsylvania as well as for the Department of Transportation. You have requested the opinion of the State Ethics Commission relating to any restrictions that may be imposed upon you within the purview of the State Ethics Act. III.` Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. Kenneth C. Larson, Jr. P.E. Page 3 As a District Engineer for the Pennsylvania Department of Transportation, hereinafter the Department, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See, Montgomery, 84 -004; Kotalik, 84 -007. Consequently, upon termination of this employment, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without 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. 403. Initially, to answer your request, we must identify the "governunental body" with which you were associated while working with the Department. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See, Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 62 Pa. Commw. Ct. 174, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised within District 3 -0, hereinafter the District; on the Consultant Selection Committee, hereinafter the Committee and with the Deputy Secretary for Highway Administration, hereinafter the Deputy Secretary. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the District, the Committee, and the Deputy Secretary. This is so, particularly in light of the fact, that you obviously exercised wide - ranging influence in relation to these particular entities. You, as district engineer, controlled all of the activities and supervised all of the individuals within the District. Additionally, as a member of the Consultant Selection Committee, not only did you have the power to recommend the selection of a consultant to the four permanent members of the Committee, but you also had a vote in relation to said selection. Information provided Kenneth C. Larson, Jr. P.E. Page 4 indicates that the recommendation of the district engineer was an influential part of the selection process. Additionally, this Commission has traditionally determined that an individual's governmental body would include his immediate supervisor, in this case, the Deputy Secretary of Highway Administration. Therefore, within the first year after you would leave the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a-vis the District, the Committee, and the Deputy Secretary. We note, herein, that in relation to the Deputy Secretary, your governmental body would not include all of the Bureaus and Districts under the Deputy Secretary but only the particular office of the Secretary and the individual serving in such office. During the course of your presentation, you have noted that prior Commission Advices of Counsel, have determined that the district engineer would not be restricted in representing individuals before the Consultant Selection Committee or other branches of the Department of Transportation other than the District. See, Collins, 84 -592. We note in relation to this, however, that these advices were not Commission opinions and, therefore, we do not believe that they are controlling in this respect. Our review of the instant situation indicates that while most of the restrictions set forth in such advices are appropriate in nature, such advices construe the governmental body of a district engineer in a manner that is too narrow. As such, we have reviewed this situation and determined that the governmental body of a district engineer should be expanded as Seth forth above. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the District, the Committee, and the Deputy Secretary, likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department. We do note, 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 association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. Kenneth C. Larson, Jr. P.E. Page 5 The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, that is the District, the Committee and the Deputy Secretary, including, but not limited to, negotiations or renegotiations on contracts with the above mentioned governmental bodies; 2. Attempts to influence your governnnental bodies; 3. Participating in any matters before the District, the Committee, or the Deputy Secretary over which you had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or employer before the District, the Committee, or the Deputy Secretary in relation to legislation, regulations, etc. See, Russell, 80 -048 and Seltzer, 80 -044. The Commission has also held that preparing and signing a proposal, document, or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the District, the Committee, or the Deputy Secretary, constitutes an attempt to influence your former governmental body. See, Kilareski, 80 -054. Therefore, within the first year after you leave the Department, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your, name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the District, the Committee, or the Deputy Secretary, is not prohibited as "representation." See, Kotalik, 84 -007. You may assist in the preparation of any documents presented to the District, the Committee, or the Deputy Secretary so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the District, the Committee, or the Deputy Secretary. Once again, however, your activity in this respect should not be revealed to the District, the Committee, or the Deputy Secretary. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the District, the Committee, or the Deputy Secretary to secure information which is available to the general public. See,'Cutt, 79 -023. There would be no prohibition upon your new employer announcing, in a general manner, your association with the firm when you initially assume your duties. This, however, must not be done in order to influence any specific project in which that firm will be engaging. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See, Dalton, 80 -056; Beaser, 81 -538. Kenneth C. Larson, Jr. P.E. Page 6 Additionally, we note that Section 403(h) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). IV. Conclusion: As a District Engineer, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Pennsylvania Department of Transportation, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is District 3 -0, the Consultant Selection Committee, and the Deputy Secretary for Highway Administration. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, Bois. Oa'' G. Sieber Pancoast Chai rman