HomeMy WebLinkAbout85-599 BhajandasMr. Amar Bhajandas
412 Lamp Post Lane
Camp Hill, PA 17011
Dear Mr. Rhajandas:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
December 4, 1985
ADVICE OF COUNSEL
85 - 599
Re: Former Public Employee; Section 3(e), Civil Engineer IV, Pennsylvania
Department of Transportation
This responds to your letter of November 6, 1985, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment following your termination of service with the
Pennsylvania Department of Transportation.
Facts: You are currently employed by the Pennsylvania Department of
Transportation, hereinafter PennDot. You serve as a Civil Engineer IV
assigned to the Bureau of Construction and Materials, Material and Testing
Division. In this position, you are responsible for establishing and
maintaining an operational and organizational structure which assures the
quality of fabricated steel purchased by the Department for both simple and
complexed civil engineering structures. Generally, you administer structural
steel inspection contracts so that the unit costs of inspection are in check
and the quality of fabricated products is assured through enforcement of each
contract's special provisions and applicable codes as prepared by the
Department and other associations. You also monitor the overall operation of
the inspection agencies on contract with the Department to insure professional
competence of its work force and thoroughness of inspection.
You also represent the Department at pre- fabrication meetings with
fabricators, designers and contractor personnel and you provide expert
interpretation and clarification of applicable codes and special provisions on
contract items. You also act as a consultant to other departments, bureaus,
and commonwealth agencies on matters related to welding and metallurgy. You
ir. Amar Bhajandas
December 4, 1985
Page 2
are involved in approving shops that make speciality steel projects for the
Department and the approval of certain welding materials and procedures. You
have indicated that generally, the fabrication of steel bridge components is
accomplished in accordance with national and state codes, standards and
speci fications.
You are currently contemplating pursuing a position in the private sector
regarding the marketing and production of steel components. In this respect,
you plan to engage in the manufacturer of items related to incidental
constuction for contractors; test the quality of construction products for
contractors; and, provide consultation to contractors and consultants on
matters related to welding and steel fabrication.
Generally, all of your dealings wi l l be with contractors or consultants
and you will not be representing yourself or your clients on any matter before
the Department of Transportation. You do note, however, that in order to
perform work for potential clients you may be required to be qualified or
certified by the Commonwealth or one of its agencies. In this respect, you
will have to present your financial, organization, and experience statements
as well as other information requi red as a prerequi site for granti ng mi nority
status or to assure the Commonwealth of your capability to produce acceptable
products. In order to be on the approved list, facility inspection could be
required and it is conceiveable that some of these inspections would be
performed by personnel from the Pennsylvania Department of Transportation. In
relation to this specific situation, you have asked whether any restrictions
are presented by the State Ethics Act.
Discussion: At the outset, it must be noted that the Ethics Commission may
only address your question within the purview of the Ethics Act. The
Commission may not and will not offer advice with respect to any duties or
obligations that may be imposed by other provisions of law such as the State
Adverse Interest Act or the Governor's Code of Conduct.
As a Civil Engineer IV for the Department, you are to be considered a
"public employee" within the definition of that term as set forth in the
Ethics Act and the regulations of this Commission. 65 P.S. &402; 51 Pa. Code
'51.1. This conclusion is based upon your job description, which when reviewed
on an objective basis, indicates clearly that you have the power to take or
recommend official action of a non - ministerial nature with respect to
contracting, procurement, planning, inspecting or other activities where the
economic impact is greater than de minimus on the interests of another person.
See Kotalik, 84 -007, Montgomery, 84 -004.
Consequently, upon termination of this employment, you would become a
"former public employee" subject to Section 3(e) of the Ethics Act. Section
3(e) of the Ethics Act provides that:
Mr. Amar Bhajandas
December 4, 1985
Page 3
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.
Initially, to answer your request, we must identify the "governmental
body" with which you were associated while working with the Department. Then,
we must review the scope of the prohibitions associated with the concept and
term of "representation ". In this context, the Ethics Commission has
previously ruled that the "governmental body" with which an individual may be
deemed to have been associated during his tenure of public office or
employment extends to those entities where he had influence, responsibility,
supervision, or control. See Ewing, 79 -010. See also Kur vs. Commonwealth
of Pennsylvania, State Ethics Commission, 435 A.2d 940 1981 .
From the description and analysis of your duties and responsibilities and
based upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been exercised generally within the
Bureau of Construction and Materials within the Department, hereinafter the
Bureau. Thus, the "governmental body" with which you have been "associated"
upon the termination of your employment would be the Bureau and Divisions and
Sections within the Bureau. Therefore, within the first year after you would
leave the Department, Section 3(e) of the Ethics Act would apply and restrict
your "representation" of persons or new employers vis-a-vis the Bureau.
Additionally, if you served as a member of or participated on any other board
within the Department, the one year representation restriction may also apply
to such board. Further advice may be obtained on this issue if necessary.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Bureau. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from the Department. We do note, 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 public
employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction the Ethics
Commission has promulgated regulations to define "representation" as follows:
Mr. Amur Bhajandas
December 4, 1985
Page 4
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
submitting bid or contract proposals which are signed by
or contain the name of the former public official or
public employe. 51 Pa. Code 1.1.
The Commission, in its opinions, has also interpreted the term
"representation" as used in Section 3(e) of the Ethics Act to prohibit:
1. Personal appearances before the governmental body or bodies with
which you have been associated, (that is the Bureau), including, but not
limited to, negotiations or renegotiations on contracts with the Bureau;
2. Attempts to influence the Bureau;
3. Participating in any matters before the Bureau over which` you had
supervision, direct involvement, or responsibility while employed by
Department;
4. Lobbying, that is representing the interests of any person or
employer before the Bureau in relation to legislation, regulations, etc. See
Russell, 80 -048 and Seltzer, 80 -044.
With respect to your specific question regarding whether you may present
appropriate information to the Department in order to become certified to work
in the private sector, the Commission has, in the past, addressed a similar
question and the Commission has determined that the one year representation
restriction would not preclude you from presenting an application to be
included in the minority business enterprise directory or from submitting a
pre - qualification application to be certified or rated as a sub - contractor as
opposed to a prime contractor to any entity within PennDot. See, Anderson,
83 -014. In addition, because of this particular determination, you would not
be precluded from making similar applications to agencies other than PennDot.
In addition to the foregoing, the Commission has also held that preparing
and signing a proposal, document or bid, or listing your name as the person
who will provide technical assistance on such proposal, document, or bid, if
submitted to or reviewed by the Bureau, constitutes an attempt to influence
your former governmental body. See Kilareski, 80 -054. Therefore, within the
first year after you leave the Department, you should not engage in the type
of activity outlined above. The Commission, however, has stated that the
inclusion of your name as an employee or consultant on a "pricing proposal ,"
even if submitted to or reviewed by the Bureau, is not prohibited as
"representation." See Kotalik, 84 -007.
Mr. Amar Bhajandas
December 4, 1985
Page 5
You may assist in the preparation of any documents presented to the
Bureau so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Bureau. Once
again, however, your activity in this respect should not he revealed to the
Bureau. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Bureau to
secure information which is available to the general public. See Cutt
79 -023. This, of course, must not be done in an effort to indirec - 0
influence these entities or to otherwise make known to the Bureau your
representation of, or work for your new employer.
Finally, 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. See Dalton, 80 -056 and
Beaser, 81 -538.
Conclusion: As a Civil Engineer IV, you are to be considered a "public
employee" as defined in the Ethics Act. Upon termination of your service with
the Pennsylvnaia Department of Transportation, you would become a ` "former
public employee" subject to the restrictions imposed by Section 3(e) of the
Ethics Act. As such, your conduct should conform to the requirements of the
Ethics Act as outlined above. Your governmental body for the purpose of the
one year representation restriction is the Bureau of Construction and
Materials and the divisions and sections therein. In addition thereto, if you
were a member of or participated on any other board within the Department,
your one year restriction may be applicable to those boards also. Additional
advice may be requested in relation to this if necessary. Finally, the one
year representation restriction would not prohibit you from presenting an
application to the Department or making necessary all available information in
order to have your new enterprise included in the minority business enterprise
directory or to be certified and rated as a qualified sub - contractor or
expert.
Further, should you terminate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests for the year following your termination of
service.
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.
This letter is a public record and will be made available as such.
Mr. Amar Bhajandas
December 4, 1985
Page 6
Final ly, i f you disagree wi th 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 he 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.
JJCJsfb