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HomeMy WebLinkAbout83-014 AndersonII. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 September 20, 1983 OPINION OF THE COMMISSION Mr. Carl C. Anderson, P.E. 260 -B Arlington Avenue Harrisburg, PA 17109 RE: Advice No. 83 -583, Appeal Dear Mr. Anderson: I. Issue: 83-014 You present an appeal from an Advice of Counsel No. 83 -583 (incorporated herein by reference) and pose the question of whether that Advice is correct insofar as it requires you to refrain from "representing" anew business during the pre - qualification process with the Pennsylvania Department of Transportation. It is clear from your presentation on September 16, 1983, that you dispute the conclusion that your "governmental body" includes the entire Pennsylvania Department of Transportation (PennDot) and you question whether you may engage in activities designed to secure or apply for "pre- qualification" status with PennDot upon your departure from PennDot or to be included in PennDot's Minority Business Enterprise Directory. We note that the Advice of Counsel did not specifically address the question of your engaging in activities designed to obtain a pre - qualification status or Directory listing for any Aew business or a business with which you might become associated upon your departure from PennDot. We note that you again raise the question in your letter of August 17, 1983, as to whether the fact that you are being furloughed makes a difference to the determination. Incidentally, the Advice of Counsel on this point had indicated that the law must be applied equally to those individuals who remove themselves from public employment voluntarily or who may be affected by furlough or other personnel decisions. Although the Advice of Counsel sets forth numerous facts regarding your duties and responsibilities with PennDot, it is important to emphasize here those duties and responsibilities which directly affect or apply to the question you raise on appeal. Specifically, we emphasize the fact that as the Supervisor of the Division of Construction Quality within the Bureau of Construction Quality Control in PennDot hereafter, the Division and Bureau respectively, you were involved in the program coordination which includes the Change Order Review Section, Construction Contract Management Section, Mr. Carl C. Anderson, P.E. September 20, 1983 Page 2 Contractors Evaluation Section, Pre - Qualification Section, Manuals an Forms Section, Labor Compliance Section, and the Construction Safety Section. Most important among these, of course, for our consideration here is your responsibility to direct and control and coordinate the activities .of tie Pre - Qualification Section. From your job description, Yich ,iy' incorporated herein by reference, it should also be noted that as a public e:Nloyee, you serve as a member of the Pre - Qualification Committee and as "ecre {Ary for the Pre - Qualification Board of Review in which capacity you receive, eecord, and notify the Pre - Qualification Committee of the Board of Review's decisions. In this capacity you are responsible for maintaining files for pre - qualification applicants, receiving and referring requests for hearings to the Pre - Qualification Committee and notifying applicants of the Pre - Qualification Committee rulings. You also are responsible for verifying a cont- actur'c claimed references to work previously performed on pre - qualification submissions. You also serve as a member of the Claim Review Board which you indicated during your presentation at our meeting, is a distinct entity from the Board of Claims and you state that your job description is in error insofar as it indicates that you are a member of the Board of Claims. We should also note that you have submitted with your appeal documents which indicate that the pre - qualification process within PennDot iivolves the submission of forms, the execution of which would compel you to have your name listed and resume attached to said application. Also the regulations of PennDot, 67 Pa. Code 457.8 indicate that bids for work to be performed for PennDot will be accepted only from prospective bidders who have been assigned a pre - qualification classification in capacity rating in accordance with the provisions of the pre - qualification standards and requirements of PennDot. Essentially, bids for work will not be accepted from bidders who have not been pre- qualified. Likewise, if your company or the company you would own would seek to be included in the Minority Business Enterprise (MBE) Directory, hereinafter the Directory, your name would have to appear on the information submitted to PennDot and the disclosure affidavit required by PennDot. PennDot must investigate and approve an application for inclusion within the Directory z.nd then prime contractors may utilize this Directory to find and secure sub - contractors whose employment will satisfy federal minority business - contracting requirements. With respect to the information about the pre - qualification and Minority Business Enterprise Directory, we have also received and reviewed the memorandum of Bruce K. Oman, Esquire, Inspector General of PennDot, dated September 14, 1983. This memorandum, among other things, confirms the importance of the pre- qualification process and the fact that on the pre - qualification forms and the MBE certification forms, your name would of necessity appear. However, we should also note ';,hat you stated, Mr. Carl C. Anderson, P.E. September 20, 1983 Page 3 during your presentation, that while the pre - qualification applications would be presented to the Division with which you had been associated, MBE data would not be subject to Division review or processed or reviewed by the Pre - Qualification Committee or Board or Claim Review Board on which you served as a member. III. Applicable Law: � 4 The law to be applied to this paragraph is as follows: 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(e). Regulations of the State Ethics Commission. Section 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 employee. 51 Pa. Code 1.1. IV. Discussion: It is obvious that there is no dispute that you are a "public employee" as set forth in the Ethics Act and as found by Counsel in the above - referenced Advice. Therefore, there i no dispute that upon termination of your employment with PennDot, you would become a "former public employee ", as set forth in Section 3(e) of the Ethics Act. As such, your activities would be restricted by the application of Section 3(e) of the Ethics Act. We must initially address your question of whether or not your status as a' furloughed employee effects the conclusion that you are covered by the restrictions set forth in Section 3(e) of the Ethics Act. We must agree with the Advice of Counsel that the application of the law itself is not dependent upon the status of the individual "former public employee." In particular, it is our opinion that the Legislature, in promulgating the Ethics Act, intended the Ethics Act to restrict the activities of "public employees" and "public officials" so as to assure the public that the financial interests of these persons did not conflict with the public trust and the responsibilities associated with their positions or employment. This goal is not reasonably achieved by application of the law only to those persons who voluntarily retire or remove themselves from public employment. The question is not whether the Act can be applied to a furloughed employee or a voluntarily Mr. Carl C. Anderson, P.E. September 20, 1983 Page 4 retiring employee. The question is whether, during the te►•m ot a person's public employment he is acting consistently with the public trust and whether upon departure from the public sector that indiv: dual can or should be allowed to utilize his association with the public sector', officials or employees (whom he may have left voluntarily or involuntarily) to secure foe himself o, a new employer, treatment or benefits that may be obtainable on y L`ca.0 r of his association with his former public employer. Given these concerns, 9,e conclusion in the Advice of Counsel is correct and will be affirmed by this Commission in this respect. You do, however, ask us to review the Advice of Counse insofar <s it concludes that your "governmental body" with which you E',a \e been "associated" is the whole of PennDot Following your presentation at our ;:eeting and after reviewing your job description and the organizational chart which you have provided, we conclude that the governmental bodies with which you have been associated is not the entire Department of Transportation. You have been "associated" at least with those entities on which you sat as a member, in " this case, the Pre - Qualification Committee and the Pre - Qualification Board of Review and the Claim Review Board within PennDot. These conclusions are consistent a�ith our prior opinions which indicate that if an individual serves as a member of a Board because of his official capacity or employment he must be considered to have been associated with at least those entities. See Seltzer, 80 -044. Also, we have reviewed your job description and the presentation which you have made at our meeting and find that although these contain some reference to "department- wide" authority, the authority that you exerted was primarily within the Bureau of Contract Quality Control, its divisions and component parts. Therefore, we find that these entities are also included within the term "governmental body" with which you have been "associated." Also, although as found above, you are "associated" only with the Bureau of Contract Quality Control, its divisions and component parts, the Pre - Qualification Committee, and Board of Review and Claim Review Board, irr order to comply with the Ethics Act you should not submit items to entities within PennDot other than these bodies which you know or should know will be reviewed by these bodies. Likewise, you have indicated that due to re- organization within PennDot the Bureau of Contract Quality Control may be re- designated or re- formed. Thus, you should also be alert that these restrictions would apply to any "successor" within PennDot which may assume all or part of the responsibility of this Bureau or other of the entities listed above. Thus, the governmental bodies with which you were associated and to which the prohibitions of Section 3(e) would generally apply are the Bureau of Contract Quality Control, its divisions and component parts (and successors thereto), the Pre - Qualification Committee and Board and the Claim Review Board. Mr. Carl C. Anderson, P.E. September 20, 1983 Page 5 We also have before us the question of the extent of the prohibition contained in the teri "representation" within Section 3(e) and the question of whether the Advice of Counsel issued in this case addresses the questions which you present and has correctly decided those questions. Specifically, you also argue that the process of submitting a sub - contractor's request for pre - qualification rating and status is quite different from that which is presented by an entity or business seeking to be qualified as a prime contractor. You indicate that the pre - qualification process for sub - contractors is ministerial and does not involve the degree of discretion which might be applied if an individual or company were presenting an application to be pre - qualified as a prime contractor. From your presentation on September 16, 1983, we can and believe we should distinguish the process of submitting a pre- qualification application for a company to be a prime contractor and a sub - contractor as well as the process for inclusion within the MBE Directory outlined above. These are questions which the Advice of Counsel did not address specifically because they were not raised until your appeal to this Commission was presented. As noted above, the MBE Directory application and disclosure affidavit are not submitted directly to the Bureau, its divisions and component parts or any of the other entities on which you sat as a member (Pre - Qualification Committe, Pre -- Qualification Board of Review or the Claim Review Board). Thus, with respect to the MBE Directory application and as to the sub - contractor pre - qualification process, we likewise find that it would not be a restricted activity or prohibited representation for you to present such an application to any entity within PennDot. We should point out, however, that as to those entities with which you were "associated" while working with PennDot -- the Bureau of Contract Quality Control, its divisions and component parts or any successor thereto and the Pre- Qualification Committee, Pre - Qualification Board of Review and Claim Review Board, the Advice of Counsel is correct and you may not engage in "representation" before these entities for the one -year period set forth in Section 3(e) except insofar as you may present a MBE application, including affidavit, or a pre - qualification application to be approved as a sub - contractor. The Commission has interpreted "representation" as that term is used in Section 3(e) to prohibit: 1. personal appearances before these governmental bodies with which you have been associated except as outlined above including but not limited to negotiations on contracts; 2. attempts to inlfuence these governmental bodies; 3. participating in any manner before these governmental bodies in a case - matter or contract over which you had supervision, direct involvement, or responsibility while employed by PennDot; Mr. Carl C. Anderson, P.E. September 20, 1983 Page 6 4. lobbying, that is representing the interest of arEy person before these governmental bodies in relation to legislation, regulations, etc. As indicated in the Advice of Counsel, the mere fact of preparing and signing as a preparer or as the persuh who would ;p:o.i:;c technical assistance on a proposal, bid, etc. on which your name would appear as an .individual (preparer or technical advisor) has been held to constitute an attempt to influence your former governmental body. See Kiln ?esl:i, 80i4054. Therefore, except insofar as you may present an MBE application and information and a pre - qualification application to be approved and rated as a sub-contractor, you should not allow your name to appear on submissions trade to the Bureau of Contract Quality Control, its divisions and component parts, or any successor thereto in PennDot or on items to be submitted to the Pre Committee, Pre - Qualification Board of Review and Claim Review Board. Likewise, your name should not appear on any items that would be submitted to or reviewed by entities within PennDot other than these listed immediately above where such submissions or items would eventually be or can reasonably be anticipated to be reviewed by these bodies. As the Advice cf Counsel stated, however, even under the above -- referenced restrictions, you may assist in the preparation of any documerLs to be presented to or the preparation associated with appearances to he made by another person or individual before the governmental bodies with which you have been associated or other entities within PennDot. Likewise, any ban under the Ethics Act does not preclude you from making general informatiicnal inquiries of PennDot or any of its bureaus, divisions, etc. See Cutt, 79-023. Additionally, the Commission has previously held that you may administer or manage a contract which is awarded without your participation and assuming that you have not engaged in any prohibited "representation" which may be awarded by your former employer to your new company or a new employer. Kilareski, supra. V. Conclusion. The Advice of Counsel previously issued in t;iis m4tter is affiii :led in part and modified in part Specifically, we state that the fact that you are leaving government service as a result of a furlough does not affect the application of Section, 3(e) to you. However, insofar as the Advice of Counsel had concluded that your governmental body with which you were "associated" was the entire Pennsylvania Department of Transportation, we modify that ruling. We conclude that the "governmental bodies" with which you had been associated are the Bureau of Contract Quality Control, its divisions and component parts or any successor thereto within PennDot and any body en which you sat as a member -- the Pre - Qualification Committee, the Pre - Qualification Board of Mr. Carl C. Anderson, P.E. September 20, 1983 Page 7 Review, and the Claim Review Board. With respect to these entities, you must adhere to the requirements of Section 3(e) and not undertake any "representation" before these entities within the first year after you leave employment with PennDot. This determination, however, does not preclude you from: (1) presenting an application to be included in the Minority Business Enterprise Directory as outlined above;or (2) submitting pre- qualification applications to be certified and rated as a sub- contractor as opposed to a prime contractor to any entity within PennDot. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /rdp cc: Bruce Doman Edgar Casper Thomas Larson By the Commission,