HomeMy WebLinkAbout94-523 PainterR. Robert Painter
421 Hillside Road
New Cumberland, PA
Re: Former Public
Engineer /Supervisor;
Transportation,
Dear Mr. Painter:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
17070
March 9, 1994
Employee; Section 3(g);
Bureau of Design,
94 -523
Senior Civil
Department of
This responds to your letter of February 9, 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 a Senior Civil
Engineer /Supervisor with the Bureau of Design following termination
of service with the Commonwealth of Pennsylvania, Department of
Transportation.
Facts: You are a Senior Civil Engineer /Supervisor in the contract
development section of the Bureau of Design with the Department of
Transportation. This position is first level management and
subject to union membership or non - member fair share.
As a contract development engineer, your responsibilities
include performing a variety of technical duties associated with
the review of contract proposals on a statewide basis involving
highway projects of all degrees of complicated design; ensuring all
special provision and required data for the various types of
construction are reviewed for 'conformity with standards,
regulations, and specifications of the Department, including
ensuring that all special designs are checked and each Item is
analyzed for its conformity with standards and specifications, and
ensuring that all amendments and additions to standard
specifications are correct and in accordance with the latest
supplemental state specifications, if revised; ensuring that all
applicable Federal requirements are contained in the proposal;
answering any comments regarding the P.S. & E. submissions to the
Federal Highway Administration; ensuring all bid items in the
proposed Schedule of Prices are consistent with the Summary Sheet
Painter, R. Robert, 94 -523
March 5, 1994
Page 2
listing on the plans; discussing . deletions, additions, and
corrections made to the proposal with the district Contract
Management Unit; coordinating proposal and plan reviews with other
engineering units such as the Electrical Section Bridge Divrisiort,
Design Section, Utility Section, Traffic Operations Divi.sz.an
Bureau of Highway Maintenance, and other units within the Contract
Division; preparing proposal reproduction work orders and prprocs.$s
to the Bureau of Office Services; maintaining records and files on
all projects advertised for construction; and ensuring that any
addendums to be issued with the printed proposal are COrreCt,
properly prepared, and approved prior to processing for
distribution to prospective bidders.
You state that you are not involved with the financial costs
of projects nor with contract negotiations.
You are considering retirement on April 8, 1994. Upon
retirement, you wish to obtain part -time employment with an
engineering consultant. The type of work you would be doing with
the engineering consultant would be essentially the same as you now
are doing for PennDOT. The job would include writing special
provisions on a project by project basis. Also, you state that the
Federal Highway Administration is requiring all plans and proposals
to be in metric units by 1996. Such is another area of interest
for you. You believe this type of employment would be beneficial
to you as well as to the Commonwealth.
Based upon the above, you request an advisory from the State
Ethics Commission regarding the applicability of the Ethics Law to
your proposed post - retirement part- time employment, _
Discussion: As a Senior Civil Engineer /Supervisor in the contract
development section of the Bureau of Design for the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT "), you are
considered a "public employee" within the definition of that term
as forth in the Public Official and Employee Ethics raw and the
Regulations of this,Commission.. 65 P.S. 5402; 51. Pa. Code S11.1.
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 mi.nimia 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:
Painter, R. Robert, 94 -523
March 9, 1994
Page 3
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 are 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, it
must be concluded that the governmental body with which you are
associated upon termination of public service would be PennDOT in
its entirety, including but not limited to the Bureau of Design
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-dork,
it was determined that a former legislative assistant to a state
senator was not merely restricted to that particular Senator but to
the entire Senate as 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 the Bureau of
Painter, R. Robert, 94 -523
March 9, 1994
Page 4
Design.
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..." lecislative 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. 51901, it is clear that the governmental body with which you
are associated is PesinDOT in its entirety, including but not
limited to the Bureau of Design.
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
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,
Painter, R. Robert, 94 -523
March 9, 1994
Page 5
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 Shav, 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.
As to the specific inquiry regarding performing the same type
of work you do now, Shav, supra, must be reviewed. In Shav, 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. Specifically, the issue in Shav was
whether restrictions of Section 3(g) applied where the name of the
former public employee would appear on invoices submitted to his
former governmental body. It was asserted that the name on an
Painter, R. Robert, 94 -523
March 9, 1994
Page 6
invoice was merely a line item of charge like any other cost and
did not indicate that the former public employee even prepared the
invoice. The Commission, however, held that the proposed inclusion
of the former public employee's name on invoices submitted would
fit within the definition of "represent" and would be prohibited by
the Ethics Law. The key factor was that the involvement of the
former, public employee on behalf of the new employer was being made
known to the former governmental body. -The Commission further held
that if an invoice were challenged, it would be possible that the
former public employee would become a participant in the resolution
of the dispute by explaining or testifying on behalf of the new
employer. Such activity would also constitute representation.
In this case, it is possible that a dispute could arise as to
work you perform for your new employer on a PennDOT contract.
You could be required to defend your work by explaining, testifying
or otherwise whereby your involvement with the contract would
become known to PennDOT. Such activity would be considered
"representation ". Accordingly, while you would not be prohibited
from working for your new employer, you must be aware that the
submission of your name to PennDOT on any document related to your
work on such contracts, your appearance before PennDOT in any
manner on behalf of your new employer and any contact you may have
with any PennDOT personnel regarding your work on any such
contracts, would be among the activities considered to be
prohibited representation under the Ethics Law.
You may assist in the preparation of any documents presented
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 QviniOn 93-005, the Commission held that
Painter, R. Robert, 94 -523
March 9, 1994
Page 7
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 e: - person includes the former
public official /employee representing himself.
In addition, Sections - 3(b) and-3(6)of the Ethics Law provide
in part that no person shall offer 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 'G rnor's Code of
Conduct.
Conclusion: As a Senior Civil Engineer /Supef=3isor in the contdct
development section of the Bureau of Design for the Commonwealth of
Pennsylvania, Department of TransportatiOF (*PenhDOT "), you ,are
considered a "public employee" as defined it the Ethics Law. Upon
termination of service with PennDOT, yOU Wo fld become a "former
public employee" subject to Section 3(g) Of the Ethics Law: k}ie
former governmental body is PennDOT in its entirety, including bait
not limited to the Bureau of Design. The bestrictiohs AA to
representation outlined above must be 16110Wed4 The propriety of
the proposed conduct has only been addfe66 Under the..Ethiei bAw.
Further should service be terminated, e§ outlined above, She
Ethics Law also requires that a Statement of financial Interest%% $e
filed for the year following to niisatiOn Of service.
Pursuant to Section 7(1/), this Adtade is a complete' defefise
in any enforcement proceeding initiated by the Commission, and
evidence of good faith conduct in an dtnef civil of cziminal
proceeding, providing the requestor ka5 diShcosed trtt =M lly 6111
the material facts and committed they acts dalplained of in reslfa
ou the Advice given.
such.
This letter is a public recood ash- mtii iti9 made available as
Finally, if you disagree wttt this' Advice" or if you have any
Painter, R. B 9
Mara' 9 1951
Pag 8"
ireiteszbh to- Cid - lien - se ie', yo11 wry appeal.. the A vim to the.
sisg o i:° A tiers appearaince b-f:a , the wil] be
sch4duled and a formal 0151niOn wiles Yee. issued by thy Cattaais$d.OA,.
Ar `
sutli appEl must in writing, and must hot actkollv
rect a 't e CiSMitilsslilrre with* fleet (' day s smolt. date ot
puY §want td 61' Pa. 'c 112( ). The appeali may be rece d
at. tit& G6ffitillsdliini by find d 1 very,. United. StlatIts mail, delivery
of ! ' Fig t "ar a'si (
.4
Sincerely
?r
Vincent 3. Dupko
Chief Counsel