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Home My WebLink About91-537 ConnerMay 13, 191 Mr. Terence D. Conner, P.E., Assistant Highway District Engineer 107 Spruce Way Uniontown, PA 15401 STATE ETHICS COMMISSION 309 FINANCE BUILDING P. O. BOX 11470 HAPIRISBUAG, PA 1 71 08-1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL 91 -537 Re: Former Public Employee; Section 3(g) PennDot; Assistant Highway District Engineer (Design) Dear Mr. Conner: This responds to your letter of March 18, 1991, 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 Highway District Engineer (Design) following termination of service with the Pennsylvania Department of Transportation (PennDot). Facts: On April 12, 1991 you will be retiring from your duties as Assistant Highway District Engineer (Design) in District 12 -0 (Uniontown) for the Commonwealth of Pennsylvania, Department of Transportation (PennDot). You have been employed in this position since 1981, except for a short period of time during which you were Acting District Engineer. Shortly after your retirement you will _ assume duties as office manager for a Southwestern Pennsylvania branch office of the consulting firm, McTish, Kunkel and Associates of Allentown, Pennsylvania. You have submitted a copy for position py of your job description your osition with PennDot, which j6b description is incorporated herein by reference. You seek the advice of the State Ethics Commission regarding any restrictions applicable to you in your new position with McTish, Kunkel and Associates. Discussion: As an Assistant Highway District Engineer (Design) 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 and the Regulations of this Commission. 65 P.S. Section 402; 51 Pa. Code Section 1.1: 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; Mr. Terence D. Conner Page 2 procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of public service, 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 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 were 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 body with public efined official public employee is or has Ethics Law as follows: Section :..2 ...Def initions x "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 subdivii ons 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 were associated upon termi of public service would be PennDot. The above is based upon the language of the Ethics Law, the legislative intent (l,eaislative Journal of House, 1989 Session, No. 15 at 290, 29:1) 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 Mr. Terence D. Conner Page 3 legislative assistant to a *tete sehator `'as not merely restrictea to that particular senator NYE t& the entire senate as his former governmental body. Therefore, within the first year after termiiiatiot of service with PennDot, Section 3(g) of the Ethics Law wou.d apply and restrict representation of persons or new employers vis -a -vis PennDot. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official Of 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 3. 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 were associated is PennDot. 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 ii primarily concerned with financial conflicts and violations Of the_ public trust. The intent of the lei/ generally is that during the term of a person's public employment he must at 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 governmental body - In respect to the one ear r _,M y epresentat3an, the Ethics Law ds ft4es "Represent" as foll.ows'e Mr. Terence D. Conner Page 4 Section 2. Defpitions. "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 Y g contract proposals which are signed by or contain the name of a former public Official or public employee. 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. 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 . inf luence. 3. Submission of bid or contract proposals which are signed 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, bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after g termination of servic c e, You should not engage in the type of activity outlined above. Hr. Terence D. Conner Page 5 You ma y, assist in the _ � _ e# 4 preparation of any. documents present td 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 PennDot. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of PennDott 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, 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 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 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. Conclusion: As an Assistant Highway District Engineer (Design) for PennDot, 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 Section 3(g) of the Ethics Law. The former governmental body is PennDot. 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] n;` any enforcement proceeding. initiated g by the_ Commi s s ion_, and evidence of good faith conduct in any other civil or criminal proceeda.rig, - providing the requester has disclosed true ifully all the tez ia°3._ facts and committed the acts domplairiddf` of ih reliance ore'' t 'e Advice given. This` letite • i•s= a public record' al - wili be maiie = ' a le as such. Mr. Terence D. Conner Page 6 rina11y,. you . disagree, with this Advice or if'you - have any reason to, challenge same, you May request that the full Commission review, this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such'appeal must be in writing and must be received at the_ Commission within 15 days of the date of this Advice pursuant to 51 Pa. ' Code S2.12. cerely, Vincent ` . Dop Chief Counsel