HomeMy WebLinkAbout87-620 TaylorMr. Roy W. Taylor
284 Kernel Lane
Etters, PA 17319
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
October 20, 1987
ADVICE OF COUNSEL
87 -620
Re: Former Public Employee; Section 3(e), Director of the Center for Program
Development and Management, Office of Planning, PennDot
Dear Taylor:
This responds to your letter of September 23, 1987, 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 PennDot.
Facts: You state that from April 8, 1983 to August 28, 1987, you were the
Director of the Center for Program Development and Management in the Office of
Planning of Penndot. Further, from August 28, 1987 to the present, you were
assigned by the Deputy Secretary for Planning to coordinate certain special
projects in PennDot District 6 -0. Specifically, those projects consisted of
the US 202 Corridor improvements, the Newton bypass, the access road to the
UPS development and the follow -up to the City of Philadelphia projects.
Furthermore, you represented the Secretary of PennDot for the Delaware River
Joint Toll Bridge Commission and also represented PennDot on the policy
committee of the metropolitan planning organizations for Philadelphia,
Reading, Lehigh Valley, Williamsport, York and Lancaster.
You state that you intend to leave governmental service on October 2,
1987 and, thereafter, become associated with an engineering consulting firm
that performs transportation, highway and bridge designs. You further state
that you would manage the Harrisburg Office for the firm and be involved
in the management of the firm's operations in Pennsylvania consisting of the
securing of contracts for the firm, and the performance of engineering
designs. You anticipate that you would begin employment with the firm on
October 5, 1987.
Mr. Roy W. Taylor
October 20, 1987
Page 2
•
You have submitted a copy of your job description /specification, which is
incorporated herein by reference. As Director for the Center for Program
Development and Management in the Office of Planning, hereinafter Center, you
are responsible for exercising executive control over PennDot's Program
Development and Management relative to contract construction and grant
programs, annual capital budget and transportation requirements. You also
administer and coordinate PennDot's project selection, resource allocation and
project authorization process. You serve as a member of PennDot's Management
Committee and as the program advisor to the Committee and to the Deputy
Secretary for Transportation Planning. You are responsible for directing the
Program Development and Management Center of PennDot, the primary mission of
which is to direct and control all aspects of the Department's contract,
construction and grant programs. The program center is divided into four
operating divisions: Project Assessment, Program Development, Program
Management and lastly Grant Programs Development. Your position also requires
you to develop and maintain the Department's project inventory of proposed
projects for all transportation modes. You also provide direction regarding
the Department's multi -year transportation improvement programs relative to
airport development, highway, bridge, public transportation and rail freight.
You also provide direction regarding the development of the authorization
requirements to support the Department's contract construction and grant
programs. Lastly, you perform such other duties as required by your
position.
You request what limitations would be imposed upon you in your new
position in light of your governmental service with PennDot.
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 Director for the Center, 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.
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:
Mr. Roy W. Taylor
October 20, 1987
Page 3
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, the "governmental body" with which you
were associated while working with PennDot must be identified. Then, the
scope of the prohibitions associated with the concept and term
"representation" must be reviewed. 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 the Center and PennDot District
6 -0. Thus, the "governmental body" with which you have been "associated" upon
the termination of your employment would be the Center and PennDot District
6 -0. 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 Center and PennDot District 6 -0.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Center and PennDot District 6 -0.
Likewise, there is no general limitation on the type of employment in which
you may engage, following your departure from PennDot. However, 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
Mr. Roy W. Taylor
October 20, 1987
Page 4
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 the Center and PennDot District 6 -0),
including, but not limited to, negotiations or renegotiations on contracts
with the Center and PennDot District 6 -0;
2. Attempts to influence the Center and PennDot District 6 -0;
3. Participating in any matters before the Center and PennDot District
6 -0 over which you had supervision, direct involvement, or responsibility
while employed by PennDot;
4. Lobbying, that i "s representing the interests of any person or
employer before the Center and PennDot District 6 -0 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 Center and PennDot District 6 -0, 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 Center and PennDot District 6 -0, is not
prohibited as "representation." See Kotalik, 84 -007.
You may, assist in the preparation of any documents presented to the
Center and PennDot District 6 -0 so long as you are not identified as the
preparer. You may also counsel any person regarding that person's appearance
before the Center and PennDot District 6 -0. Once again, however,.your
activity in this respect should not be revealed to the Center and PennDot
District 6 -0. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Center and
PennDot District 6 -0 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 Center
and PennDot District 6 -0 your representation of, or work for your new
employer.
Mr. Roy W. Taylor
October 20, 1987
Page 5
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).
Conclusion: As a Director of the Center, you are to be considered a "public
employee" as defined in the Ethics Act. Upon termination of your service with
PennDot, 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 Center and the PennDot District 6 -0.
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)(11), 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 w i l l 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,
Vincent J. Dopko
General Counsel