HomeMy WebLinkAbout86-580 HamacherMr. Lawrence L. Hamacher, Jr.
2200 Rudy Road
Harrisburg, Pennsylvania 17104
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
July 2, 1986
ADVICE OF COUNSEL
86 - 580
Re: Former Public Employee; Section 3(e), State -Owned Airports Manager,
Pennsylvania Department of Transportation
Dear Mr. Hamacher:
This responds to your letter of June 10, 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: On May 28, 1986, you terminated your employment with the Pennsylvania
Department of Transportation where you served as the Manager of the
State -Owned Airports. You have advised that your decision to terminate your
employment was hased upon the fact that the Commonwealth of Pennsylvania is
divesting itself of the airport operation and ownership. This action will
result in the take -over of the airports ownership and operation in the
Harrisburg area by county authorities. In this respect, you advise that the
counties will be seeking a management consultant to conduct general airport
operations. You advise that currently two management groups are competing for
this position. Both management groups are out -of -state airport management
companies. You have advised that it is your current intention to incorporate
your own managemet group for the purpose of competing with the out -of -state
organizations for the airport management contract under a county established
authority. You have, therefore, requested the advice of the State Ethics
Commission as to any prohibitions that would he placed upon you wthin the
purview of the State Ethics Act. In reference to your request for the advice
of the State Ethics Commission, we have reviewed your job description as well
as your classification specification, ( #1398) and have incorporated those
Mr. Lawrence L. Hamacher, Jr.
July 2, 1986
Page 2
documents herein by reference. Generally, as State -Owned Airports Manager,
you were responsible for the managerial and administrative work and direction
of al 1 operations and maintenance activi ties for al 1 state -owned airports,
inlcuding the Harrisburg International and Capitol City Airports. An
employee, i n your class, directed all airport operations, airport security,
airport maintenance, property management, tenant -user relations, community
relations and airport development. Work included responsibility for
establishing and collecting user fees charged to airlines, leasing of
bui 1 di ngs and floor space, providing police security and crash /fire /rescue
services as required. You were responsible for supervising a staff of
professional and technical employees. Work requi red the independent selection
of courses of action and the resolution of various problems. The position
which you held was administratively within the Pennsylvania Department of
Transportation, Bureau of Aviation.
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 State -Owned Airports 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, Hodge, 85 -562.
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. Lawrence L. Hamacher, Jr.
July 2, 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,
influence and control appears to have been exercised generally within Penndot.
Thus, the "governmental body" with which you have been "associated" upon the
termination of your employment would be Penndot, this is so, specifically in
light of the high degree of responsibility exercised in your position, in
which you were responsible for everything concerning the complete operations
of the state -owned airports within the control of the Pennsylvania Department
of Transportation. 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 Penndot.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to Penndot. 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.
Mr. Lawrence L. Hamacher, Jr.
July 2, 1986
Page 4
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 Penndot), including, but not limited
to, negotiations or renegotiations on contracts with the Penndot;
2. Attempts to influence Penndot;
3. Participating in any matters before Penndot 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 Penndot 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
Penndot, constitutes an attempt to influence your former governmental body.
See, Kil 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
Penndot, is not prohibited as "representation." See, Kotalik, 84 -007.
You may, assist in the preparation of any documents presented to Penndot
so long as you are not identified as the preparer. You may also counsel any
person regarding that person's appearance before Penndot. Once again,
however, your activity in this respect should not be revealed to the Penndot.
Of course, any ban under the Ethics Act would not prohibit or preclude you
from maki ng general informational inquiries of Penndot 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 Penndot 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.
In relation to your request, you have indicated that the Pennsylvania
Department of Transportation will be divesting itself of airport ownership and
operations. You have not provided any specific information in relation to
Penndot's future involvement in relation to airport operation and maintenance.
If the Department of Transportation is involved in any future airport
Mr. Lawrence L. Hamacher, Jr.
July 2, 1986
Page 5
operations or ownership situations and you are called upon or your company is
called upon to deal with the Penndot officials in relation to a contract that
you may receive, additional questions might arise as to the one year
restriction limitations placed upon you as a former public official. In these
situations, which cannot be envisioned at this time, you are advised that you
may wish to seek the additional advice of the State Ethics Commission as to
the scope of permitted activities within the purview of the State Ethics Act.
Additionally, your letter indicates that the Commonwealth of Pennsylvania and
the various local authorities have al ready impl emented di cuss i ons regarding
the divesiture of state -owned airports. If you have been privy to any of the
specific information that has been developed during these meetings, and said
information is confidential, you may not use to benefit yourself or your
private corporation any information that is confidential in nature and which
you received by virtue of your public employment. Such a use of confidential
information could result in a violation of the State Ethics Act.
In addition to the foregoing, you are advised that the current advice
does not address issues that may develop under the State Adverse Interest Act
or the Governor's Code of Conduct and you may wish to seek advice regarding
any limitations imposed upon you by those specific provisions of law.
Additionally, we note that Section 403(b) of the State Ethics Act would
prohibit any public employee or public official from accepting a position of
employment if said position has been offered based upon the understanding that
the official conduct of the employee or official, while working for his former
governmental body, was influenced by such offer. See 65 P.S. §403(b).
Conclusion: As a State -Owned Airports 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 requirements
of the Ethics Act as outlined above. Your governmental body for the purpose
of the one year representation restriction is the Pennsylvania Department of
Transportation.
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 following 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. Lawrence L. Hamacher, Jr.
July 2, 1986
Page 6
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.
JJC /sfd
Si ncer
n J. tino
Gener. Counsel