HomeMy WebLinkAbout86-526 SmithMr. Bruce A. Smith
410 Rarrington Ct.
Palmyra, PA 17078
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
March 14, 1986
ADVICE OF COUNSEL
Re: Former Public Employee; Section 3(e), Support Systems Engineer,
Pennsylvania Turnpike Commission
Dear Mr. Smith:
86 - 526
This responds to your letter of February 4, 1986, 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 Turnpike Commission.
Facts: On November 7, 1985, you resigned from your position as a Systems
Support Engineer with the Pennsylvania Turnpike Commission. You were
generally assigned to the Facility Division of the Engineering Department. In
this position, you were generally responsible for the administrative and
technical work in directing and managing the analysis, design, development,
implementation and maintenance of computer related systems and methods of
operation for the Pennsylvania Turnpike Commission. Generally, you were also
responsible for advising administrative and executive management personnel on
the progress and status of the systems management and support program. You
met with consultants and vendor representatives related to systems analysis,
design, implementation and maintenance. You further performed
responsibilities and duties as follows:
Conducting research activities of various commission operations to
develop and implement computer applications; assures that the system design
meets the objectives and goals of management as well as assures the future
support of the system; participates as a project manager; performs inspections
and audit of site locations involved in the operation in support of the
systems; assist in the development and installation of new and revised
Mr. Bruce A. Smith
March 14, 1986
Page 2
operating practices and procedures; performs a variety of analytical and
managerial duties associated with the support and maintenance of the
management information system related to a large scale complex data base and
data communications environment; assist in long and short range plan
development and develops and implements quality assurance, documentation
control, cost control, and scheduling standards. We have reviewed your job
description in this respect and have incorporated that document herein by
reference. You also served as the project manager on the Fare Collection
System Project.
You have now requested the advice of the State Ethics Commission in
relation to any restrictions that would be placed upon you within the purview
of the State Ethics Act as a former employee of the Pennsylvania Turnpike
Commission. Specifically, you have asked whether you are a public employee
within the definition of the State Ethics Act, whether the restrictions of the
Ethics Act would prohibit you from representing yourself in obtaining
consultant contracts with the Turnpike Commission and whether the State Ethics
Act would prohibit you from working for a firm or company that is currently
under contract with the Pennsylvania Turnpike Commission. You have also
i nqui red as to whether you may work for a consulting firm specifically i n
relation to the Fare Collection System Project.
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 any other applicable Code of Conduct.
As a Systems Support Engineer for the Pennsylvania Turnpike Commission,
hereinafter PTC, 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 Camiel v. State
Ethics Commission, 56 Pa. Commw. 518, 425 A.2d 60, (1981); Bocian, 85 -593.
This is especially so based upon your job description which specifically
indicates that you maintained a responsible position which included a variety
of managerial duties geared toward the development and implementation of
quality assurance, documentation control, cost control, and the formulation of
long and short range plan development.
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:
Mr. Bruce A. Smith
March 14, 1986
Page 3
Section 3. Restricted activities.
(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.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with the PTC. 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 Ewi ng, 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 the PTC. Thus, the "governmental
body" with which you have been "associated" upon the termination of your
employment would be PTC. This is speci fical ly so i n light of the fact that i n
accordance with your position specification, it appears as though you
exercised agency wide functions and duties. Therefore, within the first year
after you would leave the PTC, Section 3(e) of the Ethics Act would apply and
restrict your "representation" of persons or new employers vis -a -vis the PTC.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the PTC. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from the PTC. This, of course, responds specifically to your third
question regarding what type of employment you may obtain upon termination of
your association with PTC. 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 be obtainable only because of his association with his former public
employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction the Ethics
Commission has promulgated regulations to define "representation" as follows:
Mr. Bruce A. Smith
March 14, 1986
Page 4
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
i ncludi ng but not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
submitting 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:
1. Personal appearances before the governmental body or bodies with
which you have been associated, that is the PTC, including, but not limited
to, negotiations or renegotiations on contracts with the PTC;
2. Attempts to influence the PTC;
3. Participating in any matters before the PTC over which you had
supervision, direct involvement, or responsibility while employed by the PTC;
4. Lobbying, that is representing the interests of any person or
employer before the PTC in relation to legislation, regulations, etc. See
Russell, 80 -048 and Seltzer, 80 -044. The aforementioned restrictions would be
applicable to your representation of any person before your governmental body
including any private business interest related to yourself or any sole
proprietorship or business in which you are involved. This restriction, of
course, would not prohibit you from making applications to obtain full -time
employment, as a public employee, with your former governmetal body within the
one year period or from making appropriate applications to obtain licences
necessary to conduct one's private employment enterprises. See Anderson,
83 -014; Hagan, 84 -019.
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 PTC, constitutes an attempt to influence your former governmental body.
See Kilareski, 80 -054. Therefore, within the first year after you leave the
PTC, you should not engage i n the type of activity outlined above.
You may assist in the preparation of any documents presented to the PTC
so long as you are not identified as the preparer. You may also counsel any
person regarding that person's appearance before the PTC. Once again,
however, your activity in this respect should not be revealed to the PTC. Of
Mr. Bruce A. Smith
March 14, 1986
Page 5
course, any ban under the Ethics Act would not prohibit or preclude you from
making general informational i nqui ries of the PTC to secure information which
is available to the general public. 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 the PTC your representation of, or work for your new
employer. We note that you have questioned your ability to be employed by the
company that is acting as a consulting company on the Fare Collection System
Project. Even though you were the manager for this project, while employed by
the PTC, you would not be prohibited from being employed with this company
unless said employment was based upon some favorable action that you took as a
public employee. As noted above, however, you may not represent this company
before the PTC or any division or branch thereof. Because you have not
indicated the specific duties that you will perform in relation to this
potential employment, our advice in relation to this issue must be general in
nature. You may seek the further advice of this Commission in the event that
such is necessary.
Finally, the Commission has concluded that if you are admi ni steri ng 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.
Conclusion: As a Systems Support Engineer, you are to be considered a "public
employee" as defined in the Ethics Act. Upon termination of your service with
the Pennsylvania Turnpike Commission, 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 Pennsylvania Turnpike Commission
general ly.
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 Fi nanci al Interests for the year fol lowi ng your termi nation 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.
Mr. Bruce A. Smith
March 14, 1986
Page 6
Final ly, i f you disagree with this Advice or i f you have any reason to
challenge same, you may request that the full Commission review this Advice. A
personal appearance before the Commission wi 11 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.
General Counsel