HomeMy WebLinkAbout84-542 RosenbergerMr. Carlos E. Rosenberger, P.E.
R.D. #2
Dillsburg, PA 17019
RE: Section 3(e), Restrictions, Representation
Dear Mr. Rosenberger:
MsUmg Address.
STATE ETHICS COMMISSION
- 1)7o7-BOx —
HARRISBURG, PA i 79t68-
TELEPHONE: (717) 783 -1610
March 22, 1984
ADVICE OF COUNSEL
This responds to your letter of February 9, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether, under the Ethics Act, there are any restrictions upon
your activities following the termination of your employment with the
Pennsylvania Department of Transportation, hereinafter, PennDot.
Facts: As of March 2, 1984, you are voluntarily terminating your employment
with PennDot. Your tenure with PennDot began in 1969 when you were employed
as a Materials Specialist Trainee in District 9 -0. You worked for District
9 -0 for only six months before being drafted into the Army. Upon discharge,
you resumed your employment with PennDot and you were assigned to District 8 -0
where you worked as an Assistant Materials Engineer from 1971 to 1980. In
1980 you were promoted to Assistant Quality Assurance Engineer for the
Materials and Testing Division located at 1118 State Street in Harrisburg.
For the past year and one half you have served as the Quality Assurance
Engineer for the Materials and Testing Division of PennDot.
You have supplied us with both the classification specification for the
position in which you serve, that is Materials Engineer IV and your particular
job description with PennDot and these are incorporated herein by reference.
However, we should emphasize that these two documents indicate that as a
Materials Engineer IV and as the Quality Assurance Engineer for the Materials
and Testing Division of PennDot, you are responsible for and undertake the
following:
1. You are responsible for the direction of a major phase of
construction materials research and testing or direction of a group
of principal field offices controlling the quality of a large variety
of construction materials.
2. You are responsible for submitting comprehensive information
concerning new products along with recommendations for their
acceptance or rejection. The decisions based upon the
84 -542
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 1117
Mr. Carlos E. Rosenberger, P.E.
March 22, 1984
Page 2
recommendations which you may make may have qualitative or fiscal
implications in future construction work.
3. You are responsible on a state -wide basis for the materials and
quality assurance program, in general, with the primary
responsibility of planning, organizing and administering the
materials quality assurance program for highway construction
materials and intergrating this program with other phases of the
highway construction program.
4. You are responsible for directing the uniform application of
department policy and procedure and for evaluating test data and
witness report information submitted by the quality assurance field
engineers.
5. You also aid in the development and revision of specifications for
Pennflot projects.
You have also provided an organizational chart of the Pennsylvania
Department of Transportation dated September 28, 1983, which is incorporated
herein by reference. You indicated in our phone conversation of March 9,
1984, that this chart was the last in effect following your departure from the
Pennsylvania Department of Transportation but that up to some time in
September 1983, the Quality Assurance Division had been a unit or part of the
Materials and Testing Division. Likewise, you indicate that the "lab" to
which you refer in your request was part of your Bureau (Materials and Testing
Division) until September 1983, when it became the Field and New Products
Evaluation Unit within the Bureau of Bridge and Roadway Technology following
the reorganization embodied by this September 28, 1983 chart.
You indicate that on March 5, 1984, you will be employed by the Asphalt
Institute, hereinafter, the Institute, as a District Engineer. As a District
Engineer for the Institute, you will be responsible for servicing the
Institute's interests in the states of Pennsylvania, Maryland, and Delaware.
You will be expected to provide technical assistance to the public and private
sector, clients or customers of the Institute. You will participate in
technical committees, seminars and provide training at all levels.
You ask three specific questions:
1. What restrictions, if any, will be placed upon you with regard to the
Bureau of Bridge and Roadway Technology within PennDot.
2. Training and seminars, which are part of your work, may require
contact with the District Construction and Maintenance Personnel and
you ask whether if a problem arises with bituminous pavement you may
advise the Districts, as a technical representative, with respect to
such questions.
Mr. Carlos E. Rosenberger, P.E.
March 22, 1984
Page 3
3. You indicate that you will have occasion to go "into the Materials
and Testing Division to discuss test results on asphalt" and you ask
what restrictions you may have with regard to the "lab" especially
since you have worked in the Materials and Testing Division for the
past four years.
Discussion: In your position as a Quality Assurance Engineer for the
Materials and Testing Division, you were clearly to be considered a "public
employee" within the definition of that term as contained in the Ethics Act.
Consequently, upon termination of employment with PennDot, you became a
"former public employee" subject to Section 3(e) of the Ethics Act which
provides as follows:
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)
The main questions to be answered in the context of your request are to
identify those "governmental bodies" 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 term "governmental body" with which an individual
may be deemed to have been "associated" during his tenure of public employment
extend to those entities where he had influence, responsibility, supervision
or control. In the outline which you have presented and based upon your job
description and the classification specification for a person within your
position, we find you were clearly associated with the Bureau of Construction
and Materials, hereinafter the Bureau, and the Quality Assurance Division as
well as the other Divisions within the Bureau within the Department of
Transportation. Also, despite the reorganization which resulted in the Field
and New Products Evaluation Unit being "moved" to the Bureau of Bridge and
Roadway Technology, you should be deemed to have been associated within this
Unit while you were employed by the Pennsylvania Department of Transportation.
Thus, the governmental bodies with which you are deemed to have been
associated with include: the Bureau of Construction and Materials, the
Divisions of this Bureau and the Field and New Products Unit within the Bureau
of Bridge and Roadway Technology. Therefore, any restrictions against your
"representation" of any person within the first year after you leave
employment with PennDot would apply to these entities.
The Ethics Commission has interpreted the term "representation" as used
in Section 3(e) and as defined in the Commission's regulations to prohibit:
Mr. Carlos E. Rosenberger, P.E.
March 22, 1984
Page 4
1. Personal appearances before the governmental bodies specified above
with which you have been associated including but not limited to
negotiations on contracts;
2. Attempts to influence those governmental bodies;
3. Participation in any manner before those governmental bodies in any
case, matter, or contract of which you had supervision, direct,
involvement, or responsibility while employed by Pennllot; and
4. Lobbying, that is representing the interest of any person before
these governmental bodies in relation to legislation, regulations,
etc.
The mere act of preparing and signing as preparer or as the person who
will provide technical assistance under such a proposal, document or bid on
which your name appears as an individual (preparer or technical advisor) has
been help to constitute an attempt to influence your former governmental body.
Therefore, such activity should not be undertaken before any of the entities
with which you are deemed to have been associated. Most recently, the
Commission has indicated that such a prohibition does not preclude your name
appearing as an employee on a document entitled a "pricing proposal" as
described and considered in the Commission's ruling in Kotalik, 84 -007.
However, with this exception the activity noted above should not be undertaken
before these entities. Incidental to this conclusion you should also be
advised that you would be engaging in a "restricted activity" if you would
were to "represent" any employer by supplying reports, technical data,
proposals etc. except as to this pricing proposal to any other entity where
those reports, data, proposals would involve or you know that it would involve
these items being submitted to the "governmental bodies" with which you had
been associated (the Bureau of Construction and Materials or any Division
thereof and the Field and New Products unit within the Bureau of Bridge and
Roadway Technology). See Anderson, 83 -014. You may, however, even within the
above - referenced restrictions assist in the preparation of any documents to be
presented to or appearances to be made by another person or individual before
these entities. Of course, any ban on your activities under the Ethics Act
does not prohibit or preclude your making general informational inquiries of
the Bureau of Construction and Materials, its Divisions or any other entity
which are of a general informational nature. See Cutt, 79 -023. The
Commission has interpreted this to mean that you may seek and secure
information from even those bodies with which you are deemed to have been
"associated" while employed by PennDot as long as this information is such
that might be secured by any other member of the general public.
In an effort to answer your specific questions, we will address those as
they were presented in your letter of February 9, 1984.
Mr. Carlos E. Rosenberger, P.E.
March 22, 19R4
Page 5
1. You ask whether you have any restrictions upon your activities with
regard to the Bureau of Bridge and Roadway Technology. We assume the the
Bureau of Bridge and Roadway Technology is generally seperate and distinct
from the Bureau of Construction and Materials and its Divisions. Thus, you
are not to be deemed to have been generally "associated with" the Bureau of
Bridge and Roadway Technology. However, as discussed above, you should be
deemed to have been associated with the Field and New Products Unit within the
Bureau of Bridge and Roadway Technology. With this exception, you have no
restrictions vis -a -vis the Bridge and Roadway Technology Bureau.
2. You ask whether you may give "advice" to the Districts and /or may
contact the District construction and maintenance personnel with
respect to training and seminars which may become part of your work
with the Institute. We have not found you generally were associated
with the District Offices and thus you face no restrictions with
respect to the District Offices. You may appear or personally
represent the Institute before the District Offices or their personnel
except where you know or should know that your name or proposals will
be forwarded to any of those entities with which you are deemed to
have been associated.
3. You indicate that you have occasion to "go into" the Materials and
Testing Division to discuss test results on asphalt and that having worked in
the Materials and Testing Division for the past four years you question what
restrictions you have with regard to the "lab ". As outlined above, the
restrictions which you face with regard to "representation" extend to the
Bureau of Construction and Materials and any Division thereunder.
Accordingly, your activity in "going into" the Materials and Testing Division
of the Bureau of Construction and Materials within Pennflot must conform to and
not violate the restrictions upon your activity as outlined above.
Conclusion: Your conduct as a "former public employee" should be governed by
the above discussion. In addition, as a former public employee you are
required to file a Statement of Financial Interests for the year following
termination of your employment with Pennflot. If you have further questions
regarding specific instances which are not addressed in this Advice, please
feel free to contact us again.
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. Carlos E. Rosenberger, P.E.
March 22, 1984
Page 6
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.
Sincerely,
Sandra S. ri stianson
General Counsel
cc: Thomas D. Larson, Secretary, PennDot
Bruce Doman, Inspector General, PennDot
Sharon S. Wright, Personnel Director, PennDot