HomeMy WebLinkAbout87-504 LyngMr. Alfred F, Lyng, P. E.
17 Round Hill Road
Camp Hill, PA 17017.
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
January 6, 1987
ADVICE OF COUNSEL
87 -504
Re: Former Public Employee; Section 3(e), Deputy Secretary, Department of
General Services, Chief Engineer, Department of Transportation
Dear Mr. Lyng:
This responds to your letter of December 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
Commonwealth of Pennsylvania.
Facts: You advise that you will be terminating your service with the
Commonwealth of Pennsylvania effective January 2, 1987. You currently serve
as the Deputy Secretary for Public Works in the Pennsylvania Department of
General Services. You have served in this position from May 12, 1986.
Generally, this position involves highly responsible professional and
administrative work directing the activities responsible for the construction,
improvement, equipping, furnishing and acquiring of public buildings for the
use of the Commonwealth. You are responsible, in this position, for the
coordination and administration and management of all programs and functions
associated with the planning, layout, construction, inspection, improvement
and renovation of a large variety of public buildings, airports, hospitals,
schools, colleges, marine terminals, damns and reservoirs, flood control
projects, athletic fields, state parks, etc. Work involves responsibility for
developing policy, giving direction and coordination to each program and
serving as expert and principal advisor to the Secretary concering each
program. This work is performed under the general direction of the Secretary
of General Services.
Mr. Alfred F. Lyng, P. E.
January 6, 1987
Page 2
In addition to the foregoing, you served in the Pennsylvania Department
of Transportation as the Chief Engineer under the Deputy Secretary for Highway
Administration until May 12, 1986. This is highly responsible administrative
and professional work in planning, directing, and evaluating all Highway
Administration Bureau operations and their relationship to the engineering
districts in the Department of Transportation.
The employee in this class is responsible for assisting the Deputy
Secretary for Highway Administration, in the formulation of departmental
policies and programs utilizing the concept of value engineering and for
guiding Highway Administratrion Bureau Directors in their interpretation and
implementation. Work involves exercising operational direction over the
Highway Administration Bureau Directors and evaluating the extent to which
program objectives are met. Emphasis of the work is upon the development of
improved and more effective operations and the strengthening of Highway
Administration programs. Control is exercised over the work of Bureau
Directors through the review and evaluation of reports. Work includes
assigning and reviewing work; interpreting program rules, regulations, and
policies; evaluating employee performance; interpreting labor agreements,
resolving complaints and grievances; and providing for the training of staff.
Work is reviewed by the Deputy Secretary for Highway Administration through
conferences and reports to determine program effectiveness. You have
requested the advice of the State Ethics Commission regarding any restrictions
that will be placed upon you upon your termination of service with the
Commonwealth of Pennsylvania within the purview of the State Ethics Act. You
advise that you anticipate being employed by a private engineering firm that
might do business with either the Department of Transportation or the
Department of General Services.
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 Deputy Secretary for Public Works for the Department of General
Services and as Chief Engineer in the Pennsylvania Department of
Transportation, 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, Plowman, 85 -582;
Rocuskie, 86 -010, Larson, 86 -009.
Mr. Alfred F. Lyng, P. E.
January 6, 1987
Page 3
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 the Commonwealth of
Pennsylvania. 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,
responsiHlity 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 within both the
Pennsylvania Department of General Services and, to some degree, in the
Pennsylvania Department of Transportation. Specifically, as Deputy Secretary
in the Department of General Services, your responsibilities and duties were
significant in nature and, therefore, your governmental body, in relation to
Section 3(e) of the State Ethics Act in this respect, would include the
Department of General Services. See, Plowman, 85 -582. Additionally, °re must
note that you terminated your employment with the Pennsylvania Department of
Transportation on May 12, 1986. Therefore, any one year restriction, in
relation to that entity, would continue until May 12, 1987. Your governmental
body, within the Department of Transportation, would include the bureaus,
divisions and other offices under the Deputy Secretary for Highway
Administration, including the 11 Engineering Districts. See, Rocuskie,
86 -010. Thus, the "governmental body" with which you have been "associated'
upon the termination of your employment would be the Department of General
Services, hereinafter DGS as well as all divisions, bureaus and offices under
the Deputy Secretary for Highway Administration, including the 11 Engineering
Districts in the Pennsylvania Department of Transportation, hereinafter the
PennDot Offices. Therefore, within the first year after you would leave the
Commonwealth service, Section 3(e) of the Ethics Act would apply and restrict
your "representation" of persons or new employers vis -a -vis DGS and the
PennDot Offices.
Mr. Alfred F. Lyng, P. E.
January 6, 1987
Page 4
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the DGS and the PennDot Offices.
Likewise, there is no general limitation on the type of employment in which
you may engage, following your departure from the Commonwealth. 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:
1. Personal appearances before the governmental body or bodies with
which you have been associated, (that is DGS and the PennDot Offices),
including, but not limited to, negotiations or renegotiations on contracts
with the DGS and the PennDot Offices;
2. Attempts to influence the DGS and the PennDot Offices;
3. Participating in any matters before the DGS and the PennDot•Offices
over which you had supervision, direct involvement, or responsibility while
employed by the Commonwealth of Pennsylvania;
4. Lobbying, that is representing the interests of any person or
employer before the DGS and the PennDot Offices in relation to legislation,
regulations, etc. See, Russell, 80 -048 and Seltzer, 80 -044.
Mr. Alfred F. Lyng, P. E.
January 6, 1987
Page 5
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
DGS and the PennDot Offices, constitutes an attempt to influence your former
governmental body. See, Kilareski, 80 -054. Therefore, within the first year
after you leave the Commonwealth, 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 DGS and the PennDot Offices, is not
prohibited as "representation." See, Kotalik, 84 -007.
You may, assist in the preparation of any documents presented to the DGS
and the PennDot Offices so long as you are not identified as the,preparer..
You may also counsel any person regarding that person's appearance before the
DGS and the PennDot Offices. Once again, however, your activity in this
respect should not be revealed to the DGS and the PennDot Offices. Of course,
any ban under the Ethics Act would not prohibit or preclude you from making
general informational inquiries of the DGS and the PennDot Offices 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 DGS and the PennDot Offices, 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 understarding 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 Deputy Secretary for Public Works in the Department of
General Services and Chief Engineer in the Pennsylvania Department of
Transportation, you are to be considered a "public employee" as defined in the
Ethics Act. Upon termination of your service with the Commonwealth of
Pennsylvania, 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 Department of General Services and, until May 1987, the bureaus offices
and divisions and districts under the Deputy Secretary for Highway
Administration in the Pennsylvania Department of Transportation.
Mr. Alfred F. Lyng, P. E.
January 6, 1987
Page 6
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 Financial Interests for the year following your termination 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.
Sincerely,
chn J. '.ntin
Gener. Counsel
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