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HomeMy WebLinkAbout83-561 MoulthropMr. James S. Moulthrop 266 North 24th Street Camp Hill, PA 17011 Mailin Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 17, 1983 ADVICE OF COUNSEL 83 -561 RE: Section 3(e) Restrictions, Representation Dear Mr. Moulthrop: This responds to your letter of February 9, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether, under the Ethics Act, there are any restrictions on your activities following the termination of your employment with the Pennsylvania Department of Transportation (PennDot). Facts: As of February 9, 1983, you are voluntarily terminating your employment with PennDot. You will be moving into private industry and you will be employed by a firm that manufactures and markets an addative to asphalt cement that will be designed to improve the properties and performance of bituminous pavements. You will be a technical representative and you will not necessarily be directly involved in solicitations or selling. You are expected to represent this firm in Pennsylvania, New York, New Jersey, and New England while providing technical support for the product called "Chemcrete." Your tenure with PennDot spans some 19 years in which you have served in several positions within District 1 -0 (Franklin) and Harrisburg. Your latest assignment has been as Director of the Bureau of Highway Maintenance (for the last year and three months) and prior to that as the Chief of Materials and Testing Division (two years and two months), from September 1979 until November, 1981. In these positions, Director of the Bureau of Highway Maintenance and the Chief of Materials and Testing Division, you indicate that you had "influence" on a state -wide basis. Although not in the direct line of authority to each of the engineering districts, you did have direct responsibility for setting state -wide policy for numerous issues involving maintenance and materials control in particular. As Director of the Bureau of Highway Maintenance, your calls, for example, to the district engineer, his assistant for maintenance or the county'maintenance manager would be perceived State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania -- Mr. James S. Moulthrop June 17, 1983 - Page 2 as something other than suggestions, more in the light of directives. Likewise, in your position as Chief of Materials and Testing Division and in your position immediately prior to that as Chief of the Field Materials Control Engineers, Bureau of Materials (December, 1972 - September 1979) you had close contact with or in some instances had the District materials engineers reporting directly to you. In your new position you do not believe that you would be in a position to sign bid proposals to be presented to PennDot and you have indicated to your new employer that you would not make technical presentations to the District Office personnel in order to demonstrate the capabilities of the product called "Chemcrete." However, you would wish to be able to visit the District offices on a more social level which would not involve any selling or attempts at persuasion with relation to the product called "Chemcrete." Discussion: In your position as the Director of the Bureau of Highway Maintenance which immediately proceeded your departure from PennDot you were clearly to be considered a "public employee" within the definition of that term as contained in the Ethics Act. Consequently, upon your termination of employment with PennDot, you became a "former public employee" subject to the provisions of Section 3(e) of the Ethics Act which provides as follows: (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). Thus, the main questions to be answered in the context of this 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 "governmental bodies" 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 your outline you indicate quite clearly, that you had influence, and in some aspects of your work as Chief within the Field Materials Division and Bureau, supervision over the personnel within the District Offices. As such, although we would normally indicate that the "governmental body" with which you probably would be deemed "associated" would be limited to the Bureau of Highway Maintenance or at most the Office of the Deputy Secretary for Highway Administration, we must, given these particular facts, indicate that you must also be deemed to have been associated with the District Offices in addition to the fact that you were also associated with the Bureau of Highway Maintenance. Therefore, any restrictions against your "representation" of any person within' the first year after you lea/e'the employment of PennDot would apply to both the District Offices and the Bureau of Highway Maintenance. Mr. James S. Moulthrop June 17, 1983 Page 3 The Ethics Commission has interpreted "representation" as that term is used in Section 3(e) to prohibit: 1. Personal appearances before the governmental bodies 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 these governmental bodies in any case matter or contract over which you had supervision, direct involvement, or responsibility while employed by the governmental bodies; 4. lobbying, that is representing the interests of any person before the governmental bodies in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The mere fact of preparing and signing as preparer or as the person who will provide technical assistance under such proposal, documents or bids on which you name appear as such an individual (preparer or technical advisor) has been held to constitute an attempt to influence your formal governmental bodies. Therefore, such activity should not be undertaken either before the District Offices or to the Bureau of Highway Design. Incidental to this conclusion, you should also be advised that you would be engaging in "restricted activities"if you were to "represent" any employer by supplying reports, technical data, or proposals to any other Bureau where those reports, data, proposals, would entail or you would know that they would entail these items being submitted to the "governmental bodies" with which you had been associated (the Bureau of Highway Maintenance or the District Offices). Thus, any contact with any division or bureau in PennDot which would result in materials, bids, proposals, requests, etc., being forwarded from the entity, division, or bureau to the Bureau of Highway Maintenance or to the District Offices, would fall within the scope of prohibited "representation." You may, however, even under the above - referenced restrictions, assist in the preparation of any documents to be presented to or appearance to be made by another person or individual before the Bureau of Highway Maintenance or the District Offices, so long as you are not identified as preparer or the person to be providing technical assistance thereon as outlined above. Of course, any ban under the Ethics Act does not prohibit or preclude your making general informational inquiries of the Bureau of Highway Maintenance or the District Offices. Cutt, 79 -023. In this regard, contacts with the District Offices or the Bureau of Highway Maintenace which are simply "social" and do n.)t entail any attempts to sell, persuade, or "represent" as outlined above -Mr. James S. Moulthrop June 17, 1983 Page 4 are not prohibited. You have already indicated that you would be voluntarily refraining from making any technical presentations to the District Offices and we believe that this restriction is consistant with the requirements of the Ethics Act and should be maintained for the one -year period following your termination of service with PennDot. Finally, in an effort to answer all the specific questions which you have oultined in your presentation these will be addressed below: 1. You ask whether you may continue to serve on a Transportation Research Board (TRB) Committee and more specifically, the Committees on Pavement Maintenance Management. You indicate that some PennDot personnel also serve on these Committees. You further indicate, however, that the TRB Commitees are really private groups of experts and interested persons sponsored by the National Commission on Sciences which meet once a year to share information and to exchange data regarding their specific subjects. The Ethics Commission has not ruled that participation in such private Committees, even where PennDot personnel may also participate in such Committees, is in any way restricted or prohibited by.Section 3(c) of the Ethics Act. Thus, you may continue to serve as a member of the TRB Committee and to have contact with PennDot personnel regarding your involvement with TRB work. 2. You ask whether your many and varied contacts with Pennsylvania State University and the Pennsylvania Transportation Institute at Penn State would pose any problems if you were to continue to have such contacts regarding "Chemcrete" under the Ethics Act. The Commission has typically held that the "governmental bodies" with which you had been "associated" do not extend to individual entities which are separate and distinct from the Department or Bureau where you were employed such as Pennsylvania State University or the Pennsylvania Transportation Institute at Penn State. Thus, because you have not been "associated with" Penn State'.University or the Pennsylvania Transportation Institute at Penn State by virtue of your employment with PennDot, there are no restrictions on the contact you may have with people associated with either Pennsylvania State University or the Pennsylvania Transportation Institute at Penn State. You may contact them regarding Chemcrete or other matters so long as such contact does not entail any "representation" before the governmental bodies with which you were associated (the Bureau of Highway Maintenance and the District Offices) as set forth above. - Mr. James S. Moulthrop June 17, 1983 Page 5 3. Question number three within your original presentation dealt with the contact you may have with PennDot, the district, county, and central office levels of PennDot which was dealt with more specifically and more fully above. These will not be reiterated here. 4. You ask whether you can make presentations to a Chapter of the American Society of Highway Engineers. The membership of this Society is composed of PennDot, contractors, material suppliers, and consultants. You ask whether you can make presentations to these groups regarding "Chemcrete." Again, the Ethics Act would not find that you had been "associated with" this Society. Essentially, this Society appears to be an independent and private group and cannot be found to be the governmental body with which you had been associated and to which any of the prohibitions contained in Section 3(e) of the Ethics Act would be extended. Consequently, we find no prohibitions under Section 3(c) of the Ethics Act with relation to making presentations regarding "Chemcrete" to these groups. 5. You ask questions regarding the fact that you had been chairman of a Roadway Management System Implementation Committee which was charged with the responsibility of, among other things, soliciting proposals from interested firms to prepare an automated roadway inventory system for PennDot, the Committee selected a consultant who is now working for the Department. You ask whether you may provide expertise in the subject area to the consultant with or without renumeration as it relates to this project. You ask whether you may provide information to the Department regarding this contract. Our response to these two questions is that any activitiy that you undertake with regard to this Committee or the consultant and contractor to the Department may not involve any " representation" as itemized more fully above with regard to the Bureau of Highway Maintenance and the Distict Offices. While we have generally held that administering rather than negotiating a contract is not prohibited representation, without more detail as to the exact nature and responsibility of this Committee and the efforts you intend to undertake, it is impossible to give a more complete response. However, should you need further advice as to specific matters within the realm of the jurisdiction of this Committee, please contact us again for a more specific response. 'Mr. James S. Moulthrop June 17, 1983 Page 6 SSC /rdp 6. Finally, you ask whether you may make contact with the Pennsylvania Turnpike Commission regarding "Chemcrete." Again, the Pennsylvania Turnpike Commission is not to be considered the "governmental bodies" with which you may have been associated during your tenure of public employment. As such, Section 3(e) poses no restrictions or prohibitions with relation to your contact with the Pennsylvania Turnpike Commission regarding " Chemcrete" or otherwise. Conclusion: Your conduct as a "former public employee" should be guided by the above discussion. In addition, as a former public employee, you are required to file a Financial Interest Statement for the year following the termination of your employment with PennDot. If you have further questions regarding specific instances, 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. 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. cc: Thomas D. Larson, Secretary Sincerely, S rfdra S. Chris anson General Counsel