HomeMy WebLinkAbout86-540 BauerMr. Alfred F. Bauer
1033 North Van Buren Street
Allentown, PA 18103
Dear Bauer:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 16, 1986
86 -540
Re: Former Public Employee; Section 3(e), Transportation Construction
Manager, Pennsylvania Department of Transportation
This responds to your letter of March 17, 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 Department of Transportation.
Facts: You are currently employed by the Pennsylvania Department of
Transportation as a Transportation Construction Manager assigned to District
5 -0. You have been employed by the department since 1957 and you began your
service in District 5 -0. Until March of 1985, you served as a Transportation
Construction Manager III in the position of Assistant District Contruction
Engineer and from March of 1985 to June of 1986 your classification is that of
a Transportation Construction Manager II, where you serve in the Construction
Liaison Unit. We have reviewed your most recent job specification (1065) and
have incorporated that document herein by reference. Generally, in your most
recent position with the district you were responsible for the inspection of
materials and workmenship on complex road or bridge projects and you performed
managerial and consultive work of equivalent complexity. Work in this postion
required the interpretation of contract requirements to the analysis of
specifications, drawings, and the application of a variety of testing and
inspection techniques. Work included the planning, organizing and assignment
of work, as well as the review of work performance and evaluation of employee
performance. You were responsible for recommending employee selection,
receiving and answering grievances and approving leave. Work in this position
was accomplished through subordinate supervisors, and assignments require
Mr. Alfred F. Bauer
April 16, 1986
Page 2
independent judgement i n making on sight technical decisions. You advi se that
as an employee in the Construction Liaison Unit, your position requires that
you act as a liaison between the District 5 -0 Construction Unit and the
District Design Unit. The liaison position serves to add construction
experience in planning preparation. You were also responsible for consulting
on traffic control methods, estimated cost of inspection needs, attending
final plan checks, field view design projects for pavement repair needs and
representing the construction unit at district safety review field meetings.
You advise that you will be retiring your position with the Pennsylvania
Department of Transportation effective June 1986, and you will accept a
position as a private consultant. In this position, you will be involved in
the managing of a construction inspection staff performing work for the
Department of Transportation in Lehigh County and for some local
municipalities involving street and /or sewer work. You will also be assisting
in various types of design work such as highway, street or sewer systems by
adding construction experience in the planning preparations. You have
requested the advice of the State Ethics Commission in relation to any
restrictions that may be imposed 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 be imposed by other provisions of law such as the State
Adverse Interest Act or the Governor's Code of Conduct.
As a Transportation Construction Manager for the Pennsylvania Department
of Transportation, hereinafter PennDot, 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 Smith, 85 -531.
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
before the governmental body with which he has been
associated for one year after he leaves that body.
65 P.S. 403.
Mr. Alfred F. Bauer
April 16, 1986
Page 3
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with PennDot. 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 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,
i nflue nce and control appears to have been exe rcised i n Di strict 5 -0,
hereinafter the District. Thus, the "governmental body" with which you have
been "associated" upon the termination of your employment would be the
District. 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 the District.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the District. 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 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:
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 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:
Mr. Alfred F. Bauer
April 16, 1986
Page 4
1. Personal appearances before the governmental body or bodies with
which you have been associated, (that is the District, including, but not
limited to, negotiations or renegotiations on contracts with the District);
2. Attempts to influence the District;
3. Participating in any matters before the District over which you had
supervision, direct involvement, or responsibility while employed by PennDot;
4. Lobbying, that is representing the interests of any person or
employer before the District 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 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 District, constitutes an attempt to influence your former governmental
body. See Ki l areski , 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 by the District, is not prohibited as "representation." See Kotalik,
84 -007.
You may, assist in the preparation of any documents presented to the
District so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the District.
Once again, however, your activity in this respect should not be revealed to
the District. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the District 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 District your
representation of, or work for your new employer.
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 be prohibited by the Ethics Act. See Dalton, 80 -056 and
Beaser, 81 -538.
Additionally, we note for the sake of being complete, that the State
Ethics Act would prohibit any public employee from accepting an offer of
employment if such offer is based upon the understanding that the public
employee's official duties had or will be influenced by such offer. See 65
P.S. §403(b).
Mr. Alfred F. Bauer
April 16, 1986
Page 5
Conclusion: As a Transportation Construction Manager, you are to be
considered a "public employee" as defined in the Ethics Act. Upon 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
requi rements of the Ethics Act as outlined above. Your governmental body for
the purpose of the one year representation restriction is District 5 -0.
Further, should you termi nate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests for the year followi ng your fermi 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.
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.
Si
ohn J. .nti
Gen Counsel