HomeMy WebLinkAbout86-559 KlucherMr. Rohert H. Klucher
2620 Durham Road
York, PA 17402
Dear Mr. Klucher:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 19, 1986
ADVICE OF COUNSEL
86 - 559
Re: Former Puhlic Employee; Section 3(e), Chief Engineer, Pennsylvania
Turnpike Commission
This responds to your letter of April 16, 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: You advise that you have been an employee of the Pennsylvania Turnpike
Commission since January, 1963. You generally served as the Commission's
Chief Engineer until October of 1986. Since that date, you have been serving
as a Special Consultant to the newly appointed Chief Engineer. You advise
that you are currently contemplating your retirement and, in this respect, you
have requested the advice of the State Ethics Commission as to any
restrictions that may he imposed upon you within the purview of the State
Ethics Act. Specifically, you have requested advice in relation to four
specific questions. These questions are as follows:
1. May you enter into an agreement with the commission after your
retirement on an as needed basis to act as an expert witness for the
commission in contract claim cases against the commission.
2. Are you permitted to enter into a similar agreement to act as an
expert witness for the commission in accident cases involving
litigation against the commission.
3. Are you permitted to act as an expert witness for a plaintiff in
accident litigation against the commission.
4. May you act as an expert witness for a contractor in claims against
the commission that are heard by the board of arhitrators.
Mr. Robert H. Klucher
May 19, 1986
Page 2
As noted above, while employed by the commission, you were generally
assigned as the Chief Engineer for a substantial portion of the time that you
served with the commission. This position involved general administrative
work i n the field of engi neeri ng. You were responsible for di recti ng the
Pennsylvania Turnpike Commission's Highway and Building Design Construction
Engineering Program. Work in this capacity involved participating in
formulating commission engi neeri ng programs, implementing and di recti ng these
programs. In respect to this function, you had wide latitude in making
administrative and technical decisions, developing and implementing technical
policies and procedures, and coordinating all program activities towards
accomplishing the commission's objectives. We have reviewed your
classification specification for the position that you served while working
for the Turnpike Commission, #903, and have incorporated that document herein
by reference. That document indicates that examples of work performed in this
capacity include the following:
Directs the engi neeri ng review of feasibility and location, studi es
preliminary and final design plans for highway projects being designed by
Commission and consultant engineers; provides consultative services to
personnel on major engineering problems; develops and implements technical and
administrative procedures for highway design liaison activities with
consultant and Commission engineers.
Directs the surveillance and functional control of highway and bridge
construction projects; develops policies and procedures governing the
administration and inspection of all construction contracts and provides staff
assistance and control for construction operations; directs the development of
contracts and the biddi ng and awardi ng of contracts for highway construction
projects.
Directs the surveillance and functional control of highway and bridge
maintenance and construction performed by Commission personnel.
Directs a building design and construction program; coordi nates projects
with Commission and consultant engineers; supervises a large staff of
professional and technical personnel engaged in pre- design, design and
construction inspection of a large number and variety of buildings and related
projects.
Di rects the engineering review of bridge design projects being developed
by Commission and consultant engineers; develops technical standards for
bridge design; supervises a large staff of engineers designing complex
bridges; provides Commission -wide consultative services to Commission
personnel on major bridge engi neering problems.
Performs related work as required.
Mr. Robert H. Klucher
May 19, 1986
Page 3
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 internal Commission Code of Conduct.
As a Chief 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, Japak, 83 -007; Kotalik,
84 -007.
-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.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with 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 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 nfluence and control appears to have been exercised in the PTC generally.
Thus, the " governmental body" with which you have been "associated" upon the
termination of your employment would be the PTC. This is so specifically in
light of your job classification wherein it is indicated that you exercised
wide -rangi ng authority in relation to the engi neering policies, procedures and
recommendations to be implemented. 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.
Mr. Robert H. Klucher
May 19, 1986
Page 4
The Ethics Act would not affect your ability to appear hefore 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. We do note, however, that the conflicts of interest
law is primarily concerned with financial conflicts and violations of the
puhlic trust. The intent of the law generally is that during the term of a
person's puhlic employment he must act consistently with the puhlic trust and
upon departure from the puhlic sector, that individual should not he 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 puhlic 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 hid or contract proposals which are signed by
or contain the name of the former puhlic official or
puhlic 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 hefore 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 hefore the PTC in relation to legislation, regulations, etc. See
Russell, 80 -048 and Seltzer, 80 -044.
In respect to your specific question, it is noted that the Commission has
upheld the aforementioned representation restriction in relation to a former
employee's own business interest, corporation or sole proprietorship. Thus,
in relation to the questions that you have posed, specifically question 1 and
2 as set forth in the factual content of this advice, you are advised that you
may not represent, hefore the Commission, your own private business interest
Mr. Robert H. Klucher
May 19, 1986
Page 5
in an attempt to obtain a contract with the PTC for the provision of services
as outlined in your request. In relation to the final two questions that you
posed, this Commission has also held, in the past, that an individual who is a
former public employee, is not prohibited from appearing in third form such as
courts or other adjudicative bodies in order to represent another individual,
even if that representation is in relation to a matter concerning his former
governmental body. Thus, there would be no prohibitions upon you acting as an
expert witness before the board of arbitrators or in a court of law even if
that matter involves testifying on behalf of individuals who have initiated
action against the Commission.
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 in 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 regardi ng that person's appearance before the PTC. Once again,
however, your activity in this respect should not be revealed to the PTC. Of
course, any ban under the Ethics Act would not prohibit or preclude you from
making general informational inquiries 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
empl oyer.
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 that Secti
prohibit any public employee or publi
employment if said position has been
the official conduct of the employee
governmental body, was influenced by
on 403(b) of the State Ethics Act would
c official from accepting a position of
offered based upon the understanding that
or official, while working for his former
such offer. See 65 P.S. §403(b).
Conclusion: As a Chief 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,
generally.
Mr. Robert H. Klucher
May 19, 1986
Page 6
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 Fi nanci al Interests for the year fol lowi ng your feral 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 nc
n J.
in
Genera ounsel