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HomeMy WebLinkAbout85-600 FalkenstineSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 December 9, 1985 ADVICE OF COUNSEL Mr. Rarry A. Falkenstine, P.E. 4f49 Sherwood Drive York, Pennsylvania 15214 Re: Former Public Employee; Section 3(e), Civil Engineer IV, Pennsylvania Department of Transportation near Mr. Falkenstine: 85 -600 This responds to your letter of November 12, 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 have i that on Octoher 16, 1985, you retired from the Pennsylvania Department of Transportation, hereinafter, the Department. You were employed with the Department for a period -of twelve years during which time you worked exclusively in the areas of pavement design, pavement rehahilitation and pavement management. More recently, you have been assigned as the Chief of the Pavement Analysis and Design Section of the Division of Roadway Management System in the Bureau of Rridge and Roadway Technology. Generally, in your position, you are responsihle for reviewing all pavement design or roadway surface types for all Department construction and maintenance projects. You maintained, on a current basis, the Department's standard drawings for pavement construction and you participated in task force studies on items related to pavement structures. You were also responsible for monitoring research and development and for formulating general policies on pavement design and rehabilitation. You acted as a liaison hetween the Department and the Federal Highway Administration regarding federally funded projects. We have also reviewed your position specification and incorporate that document herein by reference. Pursuant to that document, an employee in your position directs and administers district programs associated with lahnr compliance, project safety and district wide materials and quality control. Additionally, an employee in this position provides regional district guidance and expertise for maintenance problems associated with surface treatment patching, hridge maintenance, and shoulder restahilization. Mr. Barry A. Falkenstine, P.E. December 9, 1985 Page 2 You indicate that you are currently self - employed as an engineering consultant with primary emphasis in the pavement area. You are working with other consulting firms on a contract basis. You anticipate that some of the activities would relate to the Department and you have requested the advice as to any restrictions on your post- employment activities. You specifically have requested advice as to your ability to participate in research projects contracted out by the Department. You indicate that the competition in obtaining a contract award for these research projects is primarily based upon the technical proposal and the experience of the personnel to be involved. You have requested the advice of the Ethics Commission as to your ability to participate in such a research project. Additionally, you also anticipate acting as sub- consultant to consultants that may have contracts to design projects for the Department. In this respect, you would have no direct contact with the Department but will only be involved with providing technical expertise to the consultant. 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 assigned as Chief of the Pavement Analysis and Design Section, hereinafter, the Section for the Division of Road Management System within the Bureau of Bridge and Roadway Technology, hereinafter respectively referred to as the Division and the Bureau, 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 &1.1. 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: Section 3. Restricted activities. (e) No former official or puhlic 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. Mr. Barry A. Fal kensti ne, P.E. December 9, 1985 Page 3 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 Kury 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. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau and the 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, See Anderson, 83 -014; Kotalik, 84 -007. 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 he obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwi kl , 85 -004. In respect to the one year representation restriction, the Ethics Commission has promulgated regulations to define "representation" as follows: 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 suhmitting 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: Mr. Barry A. Falkenstine, P.E. December 9, 1985 Page 4 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 the 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. 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 Kotal i k, 84 -007. 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 be 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 -02.3. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Bureau your representation of, or work for your new employer. Thus, it appears as though prior Commission opinions have addressed your specific question. While you may participate in various projects relating to the Department generally, you are restricted insofar as personally representing anyone before the Department or using your name in reference to the projects that are being sought. 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. Mr. Barry A. Falkenstine, P.E. December 9, 1965 Page 5 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 Pennsylvania 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 Bridge and Roadway Technology including all Divisions and Sections therein. 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 he 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. JJC /rdp Si ncerely, John J ontino Gene al Counsel