| Reconsideration of an advisory opinion regarding whether John Wintz, a former employee of the Materials and Testing Section as an Engineer 7 with the Department of Transportation and Development (DOTD), may accept employment with Michael Baker International, which has been hired by DOTD to develop a database. |
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John Wintz retired from DOTD on January 11, 2014. Mr. Wintz worked in the Material and Testing Section and he retired as an Engineer 7 with the title "Field Quality Assurance Engineer." As a Field Quality Assurance Engineer, he had oversight on the development of the Site manager Materials Management (SMM) System recently implemented by DOTD. The System was designed to track and report on all QA samples for all DOTD projects. Mr. Wintz also supervised the legacy mainframe system, "MATT," which SMM will eventually replace. He was instructed by his administrators to not spend any time or resources to enable the SMM system to handle Design-Build Projects.
Mr. Wintz's involvement on Design-Build Projects involved geotechnical engineering, and some sampling and testing issues. According to the organizational chart provided by Mr. Wintz, it shows him over the Materials Automation Unit Gang (4 employees); the Field Operation Unit Gang (4 employees); the Soils & Aggregates Unit Gang (6 employees); the Physicals Tests Unit Gang (9 employees).
Mr. Wintz would like to accept employment with Michael Baker International. Michael Baker Int., has been hired by DOTD to develop a documentation database using SharePoint that will record all Quality Assurance and Owner Verification sampling and testing and perform all statistical analysis needed to be in conformance with FHWA-HRT-12-039 for Design Build Projects.
Mr. Wintz would be in charge of managing the refining and troubleshooting issues that come up with the current system. Mr. Wintz's expertise in the DOTD Materials Lab will allow Michael Baker Int. to mold the system according to the many variances in DOTD needs across the state. Mr. Wintz will not work directly with any specific DOTD project, but if a DOTD project has an issue with the function of the system or a request for enhancement for the system, there will be interaction with individuals from that project to resolve the issue. Mr. Wintz may also have interaction with various districts of DOTD to determine their individual needs for the system.
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An advisory opinion was rendered at the August meeting finding that Mr. Wintz was an agency head. He does not think the term agency is intended to go downward through an agency into its lowest "organizational unit." However, the term "agency" is defined as a department, office, division, agency, commission, board, committee, or other organizational unit of a governmental entity. The definition goes on to provide that for the public servants in the twenty principal departments of the executive branch, agency is the office in which the public servant carries out his primary responsibilities. Therefore, the Board has always looked at the smallest organizational unit.
Mr. Wintz was an employee with DOTD, an executive branch agency. Mr. Wintz was an engineer in the Material and Testing Section who supervised the employees in the Materials Automation Unit Gang (4 employees); the Field Operation Unit Gang (4 employees); the Soils & Aggregates Unit Gang (6 employees); the Physicals Tests Unit Gang (9 employees). Mr. Wintz again states in his request for reconsideration that he was the "head" of laboratory and technical units, although he asserts that he was not an agency head.
"Agency head" is defined as the chief administrative officer of an agency. Mr. Wintz was the chief administrative officer for the Materials Automation Unit Gang (4 employees); the Field Operation Unit Gang (4 employees); the Soils & Aggregates Unit Gang (6 employees); the Physicals Tests Unit Gang (9 employees). As such, the prohibitions in R.S. 42:1121A(1) apply to him. Therefore, for a period of two years he is prohibited from assisting Michael Baker International in any transactions involving the Materials and Testing Section regardless if it involves any matter he participated with while employed with DOTD.
In addition, as a public servant, the prohibitions contained in R.S. 42:1121B are also applicable. Mr. Wintz states that the advisory opinion rendered appears to state that he was somehow involved in DOTD Design-build projects and that he is rendering to Michael Baker International some service he rendered to DOTD while employed. This is incorrect. The advisory opinion advises Mr. Wintz that he is prohibited from assisting Michael Baker International in any transaction with DOTD if it involves a transaction he participated in while employed with DOTD. Therefore, although the Materials and Testing Section is off limits to Mr. Wintz for two years since he was an agency head, he is not prohibited from assisting Michael Baker International in transactions involving other departments, sections, divisions, or units as long as those transactions are not those he participated in while employed with DOTD. Transaction he participated in while employed with DOTD are off limits as well for a two year period.
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La. R.S. 42:1121A(1) provides no former agency head or elected official shall, for a period of two years following the termination of his public service as the head of such agency or as an elected public official serving in such agency, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction, involving that former agency or render any service on a contractual basis to or for such agency.
La. R.S. 42:1121B provides no former public employee shall, for a period of two years following the termination of his public employment, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such former public employee participated at any time during his public employment and involving the governmental entity by which he was formerly employed, or for a period of two years following the termination of his public employment, render, any service which such former public employee had rendered to the agency during the term of his public employment on a contractual basis, regardless of the parties to the contract, to, for, or on behalf of the agency with which he was formerly employed.
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Affirm prior advisory opinion.
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| Assigned Attorney: |
Tracy Barker |
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