HomeMy WebLinkAbout86-505 MyersMr. Harold E. Myers
914 Thornton Drive
"Mechanicsburg, PA 17!155
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
January 22, 1986
ADVICE OF COUNSEL
86 -505
Re: Former Puhlic Employee; Section 3(e), Director, Rureau of Municipal
Services, Department of Transportation
Dear Mr. Myers:
This responds to your letter of December 26, 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 advised that effective December 25, 1985, you retired from state
service. You were employed by the Pennsylvania Department of Transportation,
hereinafter PennDot, as the Director of the Rureau of Municipal Services. In
this postition you were responsihle for administrative work and directing the
municipal services program for PennDot. Your classification specification,
which we have incorporated herein by reference, indicates that you were
responsihle for administering the allocation of liquid fuels revenue to the
political suhdivisions of the Commonwealth. Significant aspects of this work
include responsibility for allocating liquid fuels funds; reviewing and /or
assisting in the development of pertinent legislation; providing
administrative and technical guidance to each engineering district, municipal
service section; and directing a staff conducting periodic audits of municipal
liquid fuels accounts. Work involves the approval of plans and contracts
submitted by political subdivisions, which allocate the expenditure of liquid
fuels funds.
You were responsihle for extensive contacts with departmental officials,
municipal officials, and other state agencies. Work was performed
independently within a framework of Commonwealth law, and departmental
policies and regulations. General administrative direction is received from
an administrative superior who review work through conferences and reports to
determine program effectiveness.
Mr. Harold E. Myers
,January 22, 1986
Page 2
In addition to the foregoing, you were responsihle for reviewing and
approving all plans and contracts involving the liquid fuels fund
expepditures. The Bureau of Municipal Services is administratively within the
Pennnot's Office of the Deputy Secretary for Local and Area Transportation.
You advised that you have recently accepted a position on a part -time
basis as the Executive Secretary for the Pennsylvania Association of Asphalt
and Tar Applicators. Your duties and responsibilities in this position will
involve the coordination of the association's activities, including making
arrangements for meetings of the board of directors, the technical committee
and the annual meeting of the association. You will also he responsihle for
the preparation and distribution of a quarterly newsletter to the membership
of the association and for contacting perspective memhers on behalf of the
associ ation.
You have requested the advice of the State Ethics Commission as to
whether there are any prohibitions placed upon your new employment within the
purview of 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 he imposed by other provisions of law such as the State
Adverse Interest Act or the Governor's Code of Conduct.
As a Director for the Bureau of Municipal Services for Pennflot, you are
to he 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. , 5402;
51 Pa. Code X1.1. 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 Moulthrop, 83 -561; Ercole, 83 -568.
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 public employee shall represent
a person, with or without compensation, on any matter
hefore the governmental body with which he has been
associated for one year after he leaves that body.
65 P.S. 403.
Mr. Harold E. Myers
January 22, 1986
Page 3
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with Pennflot. 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 he 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 PennDot.
This is so, specifically in light of your duties and responsibilities which
indicates that you had department -wide authority in reviewing and approving
contracts involving liquid fuel funds and because you were responsible for
extensive contacts with department officials, municipal officials and other
state agencies. As Director of the Bureau, you answered to the Deputy
Secretary for the Office of Local and Area Transportation. Thus, "the
"governmental body" with which you have been "associated" upon the termination
of your employment would be Pennflot. Therefore, within the first year after
you would leave PennDot, Section 3(e) of the Ethics Act would apply and
restrict your "representation" of persons or new employers vis -a -vis PennDot.
It is also noted, that you were responsible for reviewing and approving
contracts regarding the allocation of liquid fuel funds to municipalities
throughout the Commonwealth. Because of this, you should not represent
your new employer before any municipality for which you reviewed and approved
the expenditure of funds. Additional advice of the State Ethics Commission
regarding this matter may be obtained if necessary.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the PennDot. Likewise, there is no
general limitation on the type of employment in which you may engage,
following your departure from PennDot. 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.
Mr. Harold E. Myers
January 22, 1986
Page 4
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
submitting hid or contract proposals which are signed hy
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 PennDot), including, but not limited
to, negotiations or renegotiations on contracts with PennDot;
2. Attempts to influence PennDot;
3. Participating in any matters hefore PennDot over which you had
supervision, direct involvement, or responsibility while employed by Pennflot;
4. Lobbying, that is representing the interests of any person or
employer before PennDot 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 hid, or listing your name as the person who will provide technical
assistance on such proposal , document, or bid, if submitted to or reviewed by
PennDot, constitutes an attempt to influence your former governmental body.
See Kilareski, 80 -054. Therefore, within the first year after you leave
PennDot, 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 hy
PennDot, is not prohibited as "representation." See Kotalik, 84 -007.
You may, assist in the preparation of any documents presented to PennDot
so long as you are not identified as the preparer. You may also counsel any
person regarding that person's appearance before Pennflot. Once again,
however, your activity in this respect should not be revealed to PennDot. Of
course, any ban under the Ethics Act would not prohibit or preclude you from
making general informational inquiries of Pennflot to secure information
which is available to the general puhlic. See Cutt, 79 -023. This, of course,
must not be done in an effort to indirectly influence these entities or to
otherwise make known to Pennflot your representation of, or work for your
new employer.
Mr. Harold E. Myers
January 2.2, 1986
Page 5
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 he prohibited by the Fthics Act. See Dalton, 8O -056 and
Beaser, 81 -538.
Conclusion: As a Director for the Bureau of Municipal Services, you are to be
considered a "public employee" as defined in the Ethics Act. llpon 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 Department of
Transportation. Additionally, if questions arise as to your representation of
your new employer before municipalities for which you reviewed and approved
the expenditure of Commonwealth funds, the further advice of this Commission
may be requested.
Further, 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.
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.
Sincer ly,
n Co
General ;ounsel