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HomeMy WebLinkAbout83-512 BeckleyThomas A. Beckley, Esquire Beckley & Madden Payne Shoemaker Building 240 North Third Street P.O. Box 877 Harrisburg, PA 17108 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 17, 1983 ADVICE OF COUNSEL 83 -512 RE: Interstate Slurry Seal, Inc. and Louis G. O'Brien, Advice No. 82 -547 Dear Mr. Beckley: This responds to your letter of February 10, 1983, in which you requested further advice from the State Ethics Commission. Issue: You ask whether the Ethics Act, in any way, precludes Mr. O'Brien from representing his employer on any matter before district engineers or before the assistant district engineers of the Pennsylvania Department of Transpor- tation (PennDOT). Facts: We note that Mr. O'Brien had communicated with us on May 6, 1982, and an Advice of Counsel No. 82 -547 was originally issued to this individual as of May 26, 1982. Subsequent to that time, on June 9, 1982 an addendum to that Advice was rendered. In order to clarify the factual context in which this response is given we are incorporating, by reference, that material which Mr. O'Brien had originally submitted to us as well as referring to the Advice of Counsel and addendum refered to above. In this correspondence the "governmental bodies" with which Mr. O'Brien seemed to had been associated while employed by PennDOT were the Bureau of Highway Design (from which he retired on June 4, 1982) and the Bureau of Highway Maintenance (where Mr. O'Brien served from August 1, 1968 to November 3, 1981). In relation to those particular Bureaus, and only those particular Bureaus, the Advice issued May 26, 1982, indicated that certain restrictions would be imposed by Section 3(c) of the Ethics Act upon Mr. O'Brien. See pages 3 and 4 of the previously issued Advice. The restrictions under the Ethics Act as interpreted and contained in Section 3(c), 65 P.S. 403(e), do not restrict a former employee's conduct except with relation to those bureaus or entities which may be considered the "governmental bodies" with which that State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Thomas A. Beckley, Esquire February 17, 1983 Page 2 individual was associated. As outlined in our prior Advice and addendum, those Bureaus in Mr. O'Brien's case have been identified as the Bureau of Highway Maintenance (where the one -year restriction expired as of November 3, 1982) and the Bureau of Highway Design (where the one -year restriction will expire June 4, 1983). Mr. O'Brien, in accordance with our former Advice and under the Ethics Act, in general, is not precluded from engaging in "represen- tation on behalf of Interstate Slurry Seal, Incorporated or any other "person" except with relation to the two Bureaus mentioned above. Thus, neither Section 3(e) of the Ethics Act nor the previously issued:Advice and addendum would generally prohibit Mr. O'Brien from "representing" any person before the district engineers or the assistant district engineers of PennDOT. This response requires one caveat, however. That is, that rn the previously issued Advice and the addendum thereto, Mr. O'Brien was instructed that he would be engaging in "restricted activities" if he were to "represent" any employer by supplying reports, technical data, or proposals to either the Bureau of Highway Maintenance or the Bureau of Highway Design (for the appli- cable one -year periods) where those reports, data, or proposals would entail his personal appearance, signature, or include his name thereon. Thus, if the contacts made by Mr. O'Brien with any PennDOT personnel result in materials, data, proposals, etc., being submitted to the "governmental bodies" with which he had been associated (the Bureaus of Highway Design and Highway Maintenance, for the applicable one -year periods) such proposals could not contain his signature or name or entail a personal appearance by Mr. O'Brien before those particular Bureaus. Thus, contact itself with the district engineers or the assistant district engineers would not, in and of itself, be prohibited under the Ethics Act, given our former Advice. However, where Mr. O'Brien knows that his contact with the district engineers or their assistants will result in "representation" as set forth in our precedent and original Advice /addendum before Bureau(s) he is advised to refrain from such contact with the district engineers and their assistants. Prohibited "representation ", if any, would occur, if and when, for example, data, proposals, etc., would be submitted to or through the assistant or district engineers to the specified Bureaus under Mr. O'Brien's name, including his name, or with his personal appearance in attempting to influence the particular Bureaus with which he was associated. See Advice /addendum. Conclusion: As outlined above and as contained in the Ethics Act and our previously issued Advice and addendum thereto, not all- contact with the Pennsylvania Department of Transportation is prohibited in the above situation. In particular, in response to your specific questions, the Ethics Act, given our previous Advice, does not preclude, except as outlined above, contact with or between Louis O'Brien and district engineers or assistant district engineers of the Pennsylvania Department of Transportation. Thomas A. Beckley, Esquire February 17, 1983 Page 3 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 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 /rdp This letter is a public record and will be made available as such. cc: Thomas D. Larsen, Secretary Bruce Doman, Esquire Sandra S. Chris anson General Counsel