Loading...
HomeMy WebLinkAbout84-573 BuechelMad. g Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 11, 1984 ADVICE OF COUNSEL Mr. Charles A. Buechel 84 -573 1021 Lancaster Avenue Pittsburgh, PA 15218 RE: Section 3(e); Representation; PennDot; Real Estate Appraiser III Dear Mr. Buechel: This responds to your letter of May 8, 1984, in which you requested advice from the State Ethics Commission. Issue: You recently retired from the Pennsylvania Department of Transportation and you have requested Advice as to any restrictions placed upon you as a former public employee by the Ethics Act. Facts: You retired from the Pennsylvania Department of Transportation, hereinafter PennDot, on March 21, 1984, after approximately thirty -two (32) years of service. During that time, you worked in various capacities with the Central Office Right -of -Way Section, that is, the PennDot Bureau of Design, Division of Right -of -Way and Utilities, in the Regional Headquarters Office, presumably in Pittsburgh. You have worked for the last eighteen (18) or so years as a Central Office Review Appraiser, holding the title of Real Estate Specialist III. We note that your job description indicates that your class title is Real Estate Appraiser III and we will use these titles as interchangeable. According to the job description for a Real Estate Appraiser III, incorporated herein by reference, some of your duties included advanced and complex technical work involving the independent appraisal review of real estate for public use. You are responsible for right -of -way acquisition in an assigned geographical region which involved reviewing and pre- approving appraisals of all types of real estate, machinery and equipment, and supplemental housing appraisals prepared by staff and fee appraisers, up to two - hundred - thousand dollars ($200,000.00). You recently received an inquiry from 0. R. Colan Associates regarding your availability to work acquiring right -of -ways in the Allegheny and Beaver Counties area. 0. R. Colan Associates have entered into a contract with PennDot for this service. Although you would like to work with 0. R. Colan Associates, you are concerned that restrictions may be placed upon you by the Ethics Act as a former public employee, therefore, you have requested advice from the State Ethics Commission. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Charles A. Buechel June 11, 1984 Page 2 Discussion: As a Real Estate Appraiser III for PennDot, you were a "public employee" within the definition of that term as defined in the Ethics Act. See Section 402 Definitions. Consequently, upon termination of your state employment, you became a "former public employee" subject to the provisions of Section 3(e) the Ethics Act, which provides: Section 3. Restricted Activities. (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). Initially, the answer to your request must identify the "governmental body" with which you were associated while working with PennDot and the scope of the prohibitions associated with the term "representation." In this context, the Ethics Commission has previously ruled that the scope of the "governmental body" with which an individual may have been deemed to be "associated" during his tenure of public employment, extends to those entities where he had influence, responsibility, supervision or control. From your job description, and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the Right -of -Way and Utilities Division in the Pittsburgh Regional Office of PennDot. You do not appear to have had any state -wide jurisdiction or jurisdiction beyond the boundaries of the Pittsburgh Regional Office. Thus, the "governmental body" with which you must be deemed to have been associated is the Right -of -Way and Utilities Division of the Pittsburgh Regional Office of PennDot. Therefore, the one year restriction outlined in Section 3(e) applies to your "representation" of persons before the Division of Right -of -Way and Utilities in the Pittsburgh Regional Office. The Ethics Act does not affect your ability to appear before agencies, districts, or entities other than the Right -of -Way and Utilities Division at the Pittsburgh Regional Office. Likewise, there is no general restriction against your seeking and securing employment following your departure from PennDot. You may not, however, "represent" any new employer, such as 0. R Colan Associates, before the Right -of -Way and Utilities Division in the Pittsburgh Regional Office as described more fully below, for the first year after leaving PennDot. The Ethics Commission has promulgated regulations to define representation. (See 51 Pa. Code 1.1) and has interpreted the term "representation" used in Section 3(e) to prohibit: 1. Personal appearances before the governmental body with which you were associated, i.e. the Right -of -Way and Utilities Division in the Pittsburgh Regional Office, including but not limited to negotiations or renegotiations on contracts with that Division; Mr. Charles A. Buechel June 11, 1984 Page 3 2. Attempts to influence that Division; 3. Participating in any matters before the Right -of -Way and Utilities Division in any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by PennDot; 4. Lobbying, that is respresenting the interests of any person or employer before the Division in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing as preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, has been held to constitute an attempt to influence your governmental body, that is, the Right -of -Way and Utilities Division in the Pittsburgh Regional Office. See Kilareski, 80 -054. Therefore, within the first year after you leave the Division you should not allow your name to appear on proposals, documents, or bids, either as preparer or as the person who will provide technical assistance in those documents, proposals, bids, etc., which will be presented to the Division or which will be reviewed by the Division. The Commission has, however, stated that the inclusion of your name as a mere employee on a "pricing proposal" even if submitted to or reviewed by the Division is not prohibited as "representation ". Kotalik, 84 -007. You may, even under the above referenced restrictions, assist in the preparation of any documents presented to the Division and assist in the preparation associated with appearances to be made by another person or individual before the Division so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act does not prohibit or preclude you from making general informational inquiries of the Division to secure information which is available to the general public. Cutt, 79 -023. Likewise, the Commission has concluded that if you are administering an existing contract, as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. This would be true even if your administration of a contract involves dealing with personnel of the Right -of -Way and Utilities Division or personnel within PennDot generally. Dalton, 80 -056 and Beaser, 81 -538. Conclusion: Upon your retirement from service with the PennDot, Bureau of Design, Division of Right -of -Way and Utilities, at the Pittsburgh Regional Office, you became a former public employee subject to the restrictions imposed by the Ethics Act and your conduct should conform to the requirements of the Ethics Act as outlined above. Mr. Charles A. Buechel June 11, 1984 Page 4 Further, as a former public employee, you must file a Statement of Financial Interests for each year that you held a 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, 1985, which represents the filing required for the year following your termination of service. This Statement of Financial Interests will record information for the calendar year 1984. 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. 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 full 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. SSC /na This letter is a public record and will be made available as such. Sin -rely, Sandra S. Chri tianson General Counsel cc: Thomas D. Larson, Secretary, PennDot Bruce Doman, Inspector General, PennDot Sharon S. Wright, Director, Personnel, PennDot Mr. Charles A. Buechel 1021 Lancaster Avenue Pittsburgh, PA 15218 Re: Advice No. 84 -573, Addendum Dear Mr. Buechel: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 15, 1984 This letter serves as an amendment and an addendum to the Advice previously issued to you dated June 11, 1984, and docketed at 84 -573. Subsequent to the issuance of that Advice, on June 18, 1984, we received further information and analysis from the Office of Inspector General, within the Department of Transportation, hereinafter, PennDot. Following receipt of that information I provided this memorandum, of the Inspector General's Office, to you by my letter of June 27, 1984, and requested that you respond to the information contained therein. By letter dated July 12, 1984, and received in our office on July 23, 1984, you responded to that information and we will take your response and further information as well as the information contained in the Inspector General's communications under advisement and respond to same by way of this Addendum. The basic question raised by the Inspector General's communication and to which you responded by your letter of July 12, 1984, involved the question of whether the scope of "governmental body" with which you were deemed to have been associated by virtue of our letter of Advice of June 11, 1984, No. 84 -573, is accurate. Specifically, the Office of the Inspector General suggests that the "governmental bodies" with which you should be deemed to have been associated during your tenure with PennDot should include the Central or any district office within PennDot and specifically to include the Pittsburgh Regional Headquarters, District 11 -0, the Central Office, and District 8 -0 as well as at least District 9 -0 and 6 -0. During your tenure with PennDot I had assumed that you worked primarily with the Pittsburgh Regional Office. However, you worked most recently with the Central Regional Office, which served as your headquarters. Mr. Charles A. Buechel August 15, 1984 Page 2 In your letter of July 12, 1984, you indicate that you will not have any direct contact with the District Office in Pittsburgh or any other district office. In addition, you indicate that you will basically be operating as an "in house" employee within the Colan Association. You will perform duties consisting of analyzing appraisal reports submitted to Colan Associates made by independent appraisers to see if they conform to the standards of the Federal Highway Administration. If errors are found in the appraisals, you will contact the appraisers to make corrections. If you find the appraisals acceptable they will be referred to Mr. Thomas Holden, who is the review appraisor for Colan Associates. Mr. Holden will then make recommendations for pre - appraisal to the Central Office Reviewer within PennDot for concurrence. In performing these functions, you indicate that, as you had stated before, you would be operating under a contract between Colan Associates and PennDot which was executed long before your retirement from PennDot and prior to your securing your present employment with Colan Associates. Further, you indicate that you do not now nor do you intend to represent Colan Associates at any right -of -way hearing. Given this information we conclude that the restrictions under Section 3(e) as set forth in our advice previously issued to you which indicated that the "governmental body" with which you should be deemed to have been associated and to which the restrictions of Section 3(e) would be applicable should be expanded to include not only the Pittsburgh Regional Office where you served but also to include the Harrisburg as well as the Pittsburgh Regional Office and District 8 -0 and District 11 -0 specifically. Assuming, as you have stated that you would not be appearing before any district office or revesenting Colan Associates at right -of -way hearings or meetings, we must now add that the restrictions of Section 3(e) of the Ethics Act would have to be observed wit regard to the Harrisburg (Central) as well as the Pittsburgh Regional Offices and including District 8 -0 and District 11 -0. appreciate your candor and your cooperation in clearing up any confusion that may have resulted by my review of the questions you originally raised and my response by way of Advice No. 84 -573. I regret any inconvenience that may have occurred which necessitated this review of that Advice. However, this addendum to the Advice previously issued will be made Mr. Charles A. Buechel August 15, 1984 Page 3 part of our original response and the protections associated with Section 7(9)(ii) of the Ethics Act are applicable to this addendum as if set forth fully as part of the original Advice issued and filed at No. 84 -573. Should you have any further questions regarding your duties and responsibilities under the Ethics Act, please feel free to contact us again. Sincerely, Olt Sandra S. C4istianson General Counsel SSC /na cc: Michael A. Finio, Office of Inspector General, PennDot Thomas D. Larson, Secretary, PennDot Bruce Doman, Inspector General, PennDot Sharon S. Wright, Director, Personnel, PennDot