HomeMy WebLinkAbout83-583 AndersonMr. Earl C. Anderson, P.E.
260 -B North Arlington
Colonial Crest
Harrisburg, PA 17109
Dear Mr. Anderson:
Mailing Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
August 15, 1983
ADVICE OF COUNSEL
83 -583
RE: Section 3(e) restrictions; Representation; Bureau of Construction Quality
Control
This responds to your letter of June 20, 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 your furlough from the Bureau of Construction
Quality Control, Construction Division, in the Pennsylvania Department of
Transportation (PennDot) in early August, 1983.
Facts: You are scheduled for furlough from the Bureau of Construction Quality
Control, Construction Division in PennDot early in August, 1983.
In your capacity as a Civil Engineer VI with the Bureau of Contract
Quality Control according to your job description, you supervise the
Construction Quality Division. As Supervisor of the Construction Division,
you recommend and review construction specifications, you are a member of the
Pre - Qualification Committee and the Board of Review for pre - qualification of
bidders on highway projects, and you are a member of the Claim Review Board.
Your responsibilities are described as "department- wide" and you are
responsible for continual direction and coordination of:
1. Field Construction Engineering, Western and Eastern Division, which
includes Quality Assurance Engineers; and
2. Program coordination division which includes Change Order Review
Section, Construction Contract Management Section, Contractors
Evaluation Section, Pre - qualification Section, Manuals and Forms
Section, Labor Compliance Section, and Construction Safety Section.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Earl C. Anderson, P.E.
August 15, 1983
Page 2
Your responsibilities include developing of policies and procedures governing
engineering phases of the Department's activities and developing policies and
procedures to govern contractor - Department relationships, the administration
of contracts, inspection of all construction and improvement contracts,
including providing staff assistance and control for district construction
operations. In your position you confer with contractors and establish the
Department's interpretation of contracts. You review and approve all requests
from districts to change contracts, contract specifications, plans and
proposals including appropriate cost adjustments. This role includes
approving construction in progress and final payments to contractors.
Upon your separation from PennDot, you apparently intend to embark upon
private construction and engineer adventures and specifically, you ask
whether:
1. if you own, controlled and managed a construction and engineering
firm, the Ethics Act would prevent that firm from conducting business with
PennDot for any period of time;
2. if you were employed by a construction and engineering firm
conducting business with PennDot, the Ethics Act would impose any restriction
upon you;
3. if voluntary retirement from PennDot would change any of these
restrictions.
Discussion: As Supervisor of the Construction Quality Division within the
Bureau of Contract Quality Control, you are clearly a "public employee" within
the definition of that term as contained in the Ethics Act. Consequently,
upon your furlough from PennDot, you will become a "former public employee"
subject to the provisions of Section 3(e) of the Ethics Act, which provides as
follow:
(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 question to be answered in the context of this request is
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 "governmental bodies" with which an individual may be
deemed to have been "associated" during his tenure of public employment
extends to those entities where he had influence, responsibility, supervision,
or control. From your job description and organizational charts, the
Mr. Earl C. Anderson, P.E.
August 15, 1983
Page 3
"governmental body" with which you were "associated" is PennDot, including the
Bureau of Construction Quality Control, hereinafter, the Bureau, and the
Construction Quality Division and the Materials and Testing Division and its
component parts. Thus, the one -year restriction applies to your representing
persons before PennDot, the Bureau, these Divisions, and their component
parts. The Act does not affect your ability to appear before agencies other
than PennDot, other governmental entities, out -of -state governmental bodies,
or federal or private entities.
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 PennDot.
4. lobbying, that is representing the interest of any person before
these 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 proposals, documents or bids on
which your name appears as such an individual (preparer or technical advisor)
has been held to constitute an attempt to influence your former governmental
body. Kilareski, 80 -054. Therefore, such activity should not be undertaken
before PennDot, the Bureau of Construction Quality Control, these Divisions or
component parts. IncidentAl to this conclusion, you should also be advised
that you would be engaging in "restricted activities" if you were to
"represent" yourself or any employer by supplying reports, technical data, or
proposals to any other bureau where you know, or have reason to believe, that
those reports, data, or proposals will be submitted to the "governmental body"
with which you had been associated, that is PennDot, the Bureau of
Construction Quality Control, these Divisions and their components for review
or approval.
You may, however, even under the above - referenced restrictions, assist in
the preparation of any documents to be presented to or preparation associated
with appearances to be made by another person or individual before PennDot,
the Bureau of Construction Quality Control or otherwise, so long as your are
not identified as preparer or the person who will provide technical assistance
as outlined above. Of course, any ban under the Ethics Act does not prohibit
or preclude your making general informational inquiries to secure information
Mr. Earl C. Anderson, P.E.
August 15, 1983
Page 4
available to the general public from PennDot, the Bureau of Construction
Quality Control or any other entity. Cutt, 79 -023. In this regard, contacts
with PennDot, the Bureau of Construction Quality Control, these Divisions and
components which are simply "social" and do not entail any attempts to sell,
persuade, or "represent" as outlined above are not prohibited. You are
reminded that this restriction applies to you for the one -year period
following your termination of service with PennDot.
Finally, the specific questions which you outlined in your request for
advice are addressed below:
1. You ask whether, if you owned, controlled and managed a construction
and engineering firm, the Ethics Act would prevent the firm from conducting
business with PennDot for any period of time. In light of the above
discussion, the firm would not generally be precluded from doing business with
PennDot. Restrictions on your activities, as discussed above, apply to your
representation of the firm before PennDot, the Bureau of Construction Quality
Control, its Divisions and component parts. A firm which you own, manage,
etc. could do business with these entities so long as you do not personally
appear or represent the firm before these entities, do not allow your name to
appear as preparer or advisor on any documents which are submitted to these
entities or to other entities which you know or you have reason to believe
will be submitted to PennDot, the Bureau, these Divisions or components for
review /approval.
2. You ask whether if you were employed by a construction and
engineering firm conducting business with PennDot, the Ethics Act would impose
any restrictions upon you. Again, the restriction which would be placed upon
your firm's ability to do business with PennDot, would be that you may not
personally appear or represent any such firm before or allow your name to
appear on any documents which are submitted to- PennDot, the Bureau, these
Divisions, or components or to other entities which you have reason to believe
will be submitted through ether bureaus to PennDot, the Bureau of Construction
Quality Control, its Divisions, or components.
3. Finally, you ask whether in case of voluntary retirement, any of
these restrictions would change. The Ethics Act does not differentiate or
allow the application of different requirements because termination of
employment results from furlough, voluntary or involuntary retirement.
Therefore, all restrictions upon "representation" as outlined above will apply
regardless of the nature of the separation from PennDot.
Conclusion: Your conduct as a "former public employee" should be guided by
the above discussion of the restrictions imposed upon you by Section 3(e) of
the Ethics Act. 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.
Mr. Earl C. Anderson, P.E.
August 15, 1983
Page 5
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.
CW /rdp
cc: Bruce Doman, Esquire
Thomas Larson, Secretary
Sincerely,
andra S. Chr stianson
General Counsel