HomeMy WebLinkAbout84-557 OByrneMr. Thomas F. O'Byrne
Real Estate and Right
of Way Consultant
817 North Arch Street
Mechanicsburg, PA 17055
Dear Mr. O'Byrne:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
April 26, 1984
ADVICE OF COUNSEL
RE: PennDot; Right -of -Way Division; Representation; Section 3(e)
84 -557
This responds to your letter of February 19, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You ask what restrictions the Ethics Act places upon your activities
as a former employee of the Pennsylvania Department of Transportation,
hereinafter, PennDot.
Facts: You state that on September 21, 1983, you were furloughed from your
position as Chief of the Right -of -Way Division at PennDot due to a
re- organization within PennDot. You indicate, and your job description
confirms, that the Right -of -Way Division, now within the Bureau of Design, was
primarily involved in land acquisition for a new or reconstructed highway. We
also take notice of the fact that prior to the September 28, 1983
re- organization within PennDot, this Division was within the Bureau of Highway
Services.
Examples of your work included administering the state -wide right -of -way
program, and integrating this program with Department engineering activities.
Further, you were responsible for developing policies, procedures, and
technical standards with regard to the integration of the right -of -way program
with agency engineering activities.
Recently, you attempted to bid on a PennDot acquisition project or
contract, however, PennDot informed you that such activity would be in
violation of the Ethics Act. You state that you would like to be given the
opportunity to bid on such projects and that you do not ask for special
consideration from PennDot with respect to this bid or contract .
Mr. Thomas F. O'Byrne
April 26, 1984
Page 2
You have requested advice from the State Ethics Commission regarding any
restrictions upon your activities as a former public employee. Specifically,
you ask:
1. whether you may be permitted to bid on land acquisition projects;
and
2. whether you may bid on appraisal assignments.
Discussion: During your tenure with the Pennsylvania Department of
Transportation, you are a "public employee" as defined by the State Ethics
Act. Therefore, upon termination of such service with PennDot, you became a
"former public employee" as of September 22, 1983. As a "former public
employee" your conduct must conform to the requirements of Section 3(e) of the
Ethics Act as set forth below:
(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(e).
As a former public employee, you must, for the first calendar year
following your termination of employment with PennDot (September 22, 1983 to
September 22, 1984), refrain from representation as the Commission has defined
that term vis-a-vis any governmental bodies with which you may have been
associated while employed by PennDot. We must, however, review your request
by asking the questions:
1. What is the scope of the term or activity known as
"representation "? and
2. To which governmental body or bodies do the restrictions and
prohibitions against representation extend in your case?
We will address the latter question first. While it is unclear whether
your responsibility as Chief of the Right -of -Way Division within the Bureau of
Highway Services, now the Bureau of Design, was limited to a particular
district or extended throughout the Department, your job description and other
information indicates that your influence extended throughout the entire state
with respect to the right -of -way program. In this regard, any restrictions
and /or prohibitions outlined in this Advice extend to the Right -of -Way
Division (the Division), the Bureau of Highway Services (BHS), and its
successor, the Bureau of Design (BD). See Anderson, 83 -014. Thus, the
prohibition of Section 3(e) of the Ethics Act extend to the Division, BHS, and
the BD.
Mr. Thomas F. O'Byrne
April 26, 1984
Page 3
Further, the Ethics Commission has determined that the prohibited
activities described as "representation" which you must avoid with respect to
the Division, BHS, and the BD for the one year period set forth in Section
3(e) applies to such activities as:
1. personal appearances before the governmental bodies with which you
were associated, that is, the Division, BHS, and the BD, including
but not limited to negotiation or re- negotiation of contracts with
those bodies;
2. attempts to influence those bodies or offices;
3. participation in any manner before these entities in a case or
matter over which you had supervision - , direct involvement, or
responsibility while employed by PennDot; and
4. lobbying, that is representing the interests of any person or client
before these entities with respect to legislation, regulations, etc.
See Russell, 80 -048 and Seltzer, 80 -044.
It should be noted that the mere act of preparing and signing with your
own name or having your name appear as the person who will serve in regard to
a proposal (such as technical advisor on the proposal) has been held to
constitute an attempt to influence your former governmental body should such a
proposal be presented to or reviewed by the Division, BHS, or the BD.
Therefore, such activity falls within the scope of "representation" which is
prohibited by Section 3(e) of the Ethics Act. See Kilareski, 80 -054. This is
because the inclusion of your name as preparer or technical advisor on such a
proposal to be submitted to or reviewed by these entities has the potential
for influencing the decision of these bodies and must, therefore, be
prohibited for the one year period after your leaving employment with the
state. Also, where you know or should know that a submission or proposal that
you might make to an entity other than the Division, BHS, or the BD would be
reviewed by these bodies, your name should not appear on such a proposal as
outlined above. Anderson, 83 -014.
While these restrictions apply to you for one year following your
termination of service with PennDot relative to the Division, BHS, and the BD,
you may, nevertheless, engage in the following activities even within the one
year period:
1. administer, rather than negotiate or re- negotiate, any contract that
exists or is to be awarded to you or your future employer so long as
the contract is entered into without the inclusion of your name as
noted above;
Mr. Thomas F. O'Byrne
April 26, 1984
Page 4
2. make general informational inquiries of your former governmental
bodies so long as no attempt is made to influence them as
prohibited above;
3. utilize the knowledge and expertise gained during your tenure as a
public employee so long as you do not use any confidential
information gained during that time; and
4. appear and represent any person on behalf of any client or a new
employer before any governmental body, including bodies within
PennDot, except before the Division, BHS, or the BD.
You should be aware, as discussed above, that whether or not you are
personally precluded from representing a client that this restriction is
personal to you and does not extend to the members of your consulting service.
Morris, 80 -034. Your firm and your clients may, therefore, receive the
benefit of your expertise even though you personally may not represent your
firm or clients as outlined above.
With regard to your specific questions, you may bid on any project or
contract so long as this bidding does not entail your personal representation
as outlined above before the Division, BHS, and the BD. This one year
restriction will be in effect until September 22, 1984, at which time you will
be free to represent any person, including entering a bid on any project or
assignment administered through any division of PennDot, including the
• Division and /or the BHS, and the BD.
Conclusion: Upon your termination of service with the Commonwealth, you
became a "former public employee" subject to the restrictions imposed by the
State Ethics Act in Section 3(e). Your conduct as a former public employee
must con ?orm to the requirements in the Act as described in this Advice, and
you should take note of both the prohibited and allowable activities.
Additionally, as a former publice employee, you must file a Statement of
Financial Interests for each year that you held the position described above
and for the year following your termination of service. Thus, a Statement of
Financial Interests should be filed no later than May 1, 1984, which
represents the filing required for the year following your termination of
service. This financial disclosure will record information from the calendar
1983.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the Advice given.
Mr. Thomas F. O'Byrne
April 26, 1984
Page 5
CW /rdp
This letter is a public record and will be made available as such.
Finally, if 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 made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
cc: Thomas D. Larson, Secretary, PennDot
Sharon S. Wright, Director, Personnel, PennDot
Bruce Doman, Inspector General, PennDot
Sincerely,
Sandra S. Chr stianson
General Counsel