HomeMy WebLinkAbout86-626 BruloMr. Alhert T. Rrulo, P.E.
542 -E North Hershey Road
Hummelstown, PA 17036
near Mro Rrulo:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 11470
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
November 18, 1Q26
ADVICE OF COl)NSEL
•
86 -626
Re: Former Public Employee; Section 3(e), Hydraulic Engineer II, Department
of Environmental Resources
This responds to your letter of Octoher 21, 1926, 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 Environmental Resources.
Facts: You indicate, that effective Octoher 17, 1986, you terminated your
employment with the Pennsylvania Department of Environmental Resources. You
served the department as a Hydraulic Engineer II within the Storm Water
management Section of the Division of Waterways and Storm Water Management.
That division is administratively located within the Rureau of Dams and
Waterway Management in the Office of Engineering. You recenty undertook
employment as a professional engineer with H. Edward Black and Associates. You
will he engaged in civil engineering and design work related to land
development including roadways, lot layouts, grading and earthwork, and
utility work such as sanitary sewer and water design. You have requested the
advice of the State Ethics Commission as to whether any restrictions are
placed upon your future employment activities pursuant to the State Ethics
Act.
Generally, as a puhlic employee, you were engaged in processional
engineering work for the Commonwealth of Pennsylvania. As a Hydraulic
Engineer II you were responsible for activities related to the design oC
completed engineering projects or engineering research projects. Work in this
capacity involved designing or reviewing the design for engineering projects.
Research work included the testing and preparation of projects. Employees in
State Ethics Commission • 308 Finance Building * Harrisburg, Pennsylvania
Mr. Albert T. Brulo, P.E.
November 18, 1986
Page 2
this classification work with considerable independence in developing the
technical details of the project. Such work must be in accordance with
project priorities and scheduled deadlines. Work normally required contact
with other public agencies, consultants or contractors in order to obtain
compliance with Commonwealth standards and needs. In your position with the
department, you were assigned primarily to regional responsibilities in the
Bureau's Harrisburg, Norristown a.id Wilkes -Barre Regional Offices, totalling
34 counties. You were involved in coordinating all bureau and divisional
level engineering program servi ces and other servi ces requi red for those
counties including, detailed studies, analysis of information and program
review and guidance to bureau regional staff and regional offices in the
assigned area. You participated in the development of detailed requirements
for forn submission specification format and cost estimate data and other
i nforn t on needed when preparing professional agreements for assigned areas
responsibilities. You provided consultation to other bureau, division and
reg' c, da offices as required in formulating departmental policies and goals.
We +pave r v ewed both your job description and position classification,
(1:72?, and ilave incorporated those documents herein by reference.
Disc cien: At the outset, it must be noted that the Ethics Commission may
only . :ddress your question within the purview of the Ethics Act. The
Commission may not and will not offer advice with respect to any duties or
obiigations 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 Hydraulic Engineer II for the Pennsylvania Department of
Environmental Resources, hereinafter the Department, you are to be considered
a "public employee" within the definition of that term as set forth in the
Eth cs 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, Montgomery, 84 -004.
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 Heaves that body.
61; P.S. 403.
Mr. Albert T. Brulo, P.E.
November 18, 1986
Page 3
Initially, to answer your request we must identify the "goverrmental
body" with which you were associated while working with the Department. 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, resporrYDility,
influence and control appears to have been exercised within the Bureau of Dams
and Waterways Management. Thus, the "governmental body" with v. :ich you have
been "associated" upon the termination of your employment would , ae the 3u'eau
of Dams and Waterways Management, hereinafter the Bureau. There(o1 °e, w thi n
the first year after you would leave the Department, Section 3(2) of the
Ethics Act would apply and restrict your "representation" of persons or new
employers vis -a -vis the Bureau.
The Ethics Act would not affect your ability to appear before -agencies or
entities other than with respect to the Bureau. Likewise, +;here is no general
limitation on the type of employment in which you may engage, fol +owing !.our
departure from the Department. We do note, however, that the conflicts of
interest law is primarily concerned with financial conflicts and vi, ations 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 r+ubiic trust
and upon departure from the public sector, that individual shou.d not be
allowed to utilize his association with the public sector, officials o'
employees to secure for himself or a new employer, treatment or behofits that
may be obtainable only because of his association with his former
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
i ncludi ng but not limited to the fol 1owi ng 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. Albert T. Brulo, P.E.
November 18, 1986
Page 4
The Commission, i n 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 Bureau), including, but not
limited to, negotiations or renegotiations on contracts with the Bureau;
2. Attempts to influence the Bureau;
3, Participating in any matters before the Bureau over which you had
supervision, direct involvement, or responsibility while employed by the
Department;
4. Lobbying, that is representing the interests of any person or
employer before the Bureu 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
assis.ance on such proposal, document, or bid, if submitted to or reviewed by
the Bureau, constitutes an attempt to influence your former governmental body.
See, Kilareski, 80 -054. Therefore, within the first year after you leave the
Department, you should not engage in the type of activity outlined above.
You may, assist in the preparation of any documents presented to the
Bureau so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Bureau. Once
again, however, your activity in this respect should not be revealed to the
Bureau. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Bureau 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 Bureau 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 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).
Mr. Albert T. Brulo, P.E.
November 18, 1986
Page 5
Conclusion: As a Hydraulic Engineer II, you are to be considered a "public
employee" as defined in the Ethics Act. Upon termination of your service with
the Pennsylvania Department of Environmental Resources, 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 Bureau of Darns and Waterways
Management.
Further, should you terminate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file
Statement of Financial Interests for the year fol1owi ng your termi nati oft of
servi ce,
Pursuant to Section 7(9)(ii), this Advice is a complete defense in ay
enforcement proceeding initiated by the Commission, and evidence goud faith
conduct in any other civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts c:npl ai i,ad
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 forma
Opinion from the Commission will be issued. Any such appeal ;dust be made, in
writing, to the Comml ssion within 15 days of service of this Advice ce pursuant
to 51 Pa. Code 2.12.
Sinc
ohr. :i
Genes Counsel