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HomeMy WebLinkAbout89-005 PopovichSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair. G. Sieber Pancoast Dennis C. Harrington Michael J. Washo Date Decided: Julv 28, 1989 Date Mailed: A»uat R 1989 Richard D. Popovich 89 -005 120 Bluejay Drive Canonsburg, PA 15317 Re: Former Public Employee; Section 3(g); Transportation Maintenance Manger I; PennDot Dear Mr. Popovich: This Opinion is issued in response to your request of June 13, 1989. I. Issue: Whether the Ethics Law presents any restrictions upon your employment following your termination of service with PennDot. II. Factual Basis for Determination: You advise that you are leaving employment with the Pennsylvania Department of Transportation hereinafter PennDot, District 11 -0 effective July 17, 1989. After the termination of your Commonwealth service, you will be taking a position with Triline Associates, Inc., which has PennDot as one of its present clients. Your specific position in the PennDot District Office is EDP Coordinator; you work directly for Mr. Raymond Hack who is Maintenance Program Engineer for the Pittsburgh Office. You request a ruling from this Commission as to the limitations that the Ethics Law would impose upon you in your new position. III. Discussion: As a EDP Coordinator II for PennDot, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law, Act No. 9 of June 26, 1989. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power Richard D. Popovich Page 2 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 minims on the interests of another person. Consequently, upon termination of employment, 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: 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. 5402. Initially, to answer your request regarding the restrictions as to your current compensated position, the governmental body with which you were associated while working with PennDot must be identified. Then, the scope of the prohibitions associated with the concept and term of "represent" 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. Thus, the governmental body with which you have been associated upon the termination of your employment would be PennDot. Therefore, within the first year after termination of service with PennDot, Section 3(g) of the Ethics Law would apply and restrict your representation of persons or new employers vis -a -vis PennDot. Richard D. Popovich Page 3 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 association with his former public employer. In respect to the one year 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. 65 P.S. S402. 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. 65 P.S. S402. This Commission interprets the term "represent" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, (that is PennDOT), including, but not limited to, negotiations or renegotiations in general or as to contracts with PennDOT; 2. Attempts to influence PennDOT; 3. Submission of bid or contract proposals which are signed or contain the name of the former public office /employee; Richard D. Popovich Page 4 4. Participating in any matters before PennDOT over which there was supervision, direct involvement, or responsibility while employed by that governmental body; 5. Lobbying, that is representing the interests of any person or employer before PennDOT in relation to legislation, regulations, etc. We also find 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 PennDOT constitutes an attempt to influence your former governmental body. 'Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. However, the above restriction would not extend to including one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by PennDOT. You may, assist in the preparation of any documents presented to PennDOT so long as you are not identified as the preparer. 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 the 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, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the governmental body the representation of, or work for the new employer. Finally, we determine that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. In addition, Sections 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 or 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. Reference is made to these provisions of the law not to imply that there has 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 Act. Richard D. Popovich Page 5 IV. Conclusion: As a EDP Coordinator II, 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 the restrictions imposed by Section 3(g) of the Ethics Law. As such, your conduct should conform to the requirements of the Ethics Law as outlined above. 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(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 evidence of the advice given. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th Commission, CAO a G. Hughes Chair