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HomeMy WebLinkAbout84-007 KotalikBernard F. Kotalik, P.E. 107 Runson Road Camp Hill, PA 17011 RE: Appeal, Advice No. 83 -599 Dear Mr. Kotalik: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION February 24, 1984 04 -007 You present an appeal from Advice of Counsel No. 83 -599 (incorporated herein by reference) and pose the question of whether that Advice is correct insofar as it requires you to refrain from or implies that you must refrain from allowing your name to appear on proposals as a preparer or as a person who will provide technical assistance under such proposals with respect to that portion of a proposal known as a "pricing" proposal. The facts as set forth in Advice. No. 83 -599 are incorporated herein by reference. For sake of completeness, however, we will indicate briefly the facts that are applicable to your circumstances. You were employed as the Chief Engineer in the Bridge Division, Bureau of Highway Design, Pennsylvania Department of Transporation ( PennDot) until October 19, 1983, when you voluntarily retired. You indicated that you intend to seek employment in the private sector and you asked whether you could work for a company which deals with PennDot; whether there would be any restrictions on your working with any firm that provides services to the Pennsylvania Turnpike Commission; and whether there are any restrictions on your working with any firm that provides services to municipalities in the Commonwealth. The Advice which was issued indicated that because you were not associated with the Pennsylvania Turnpike Commission nor with local government or municipalities within the Commonwealth, there would be no restrictions upori your ability to seek employment and provide services to the Pennsylvania Turnpike Commission or such other municipalities in the Commonwealth. You do not question this portion of the Advice which was issued. Bernard F. Kotalik, P.E. February 24, 1984 Page 2 However, this Advice did advise that upon termination of your service with PennDot, you became a former public employee subject to the restrictions of the Ethics Act. The restrictions as outlined in the Advice, indicated that the governmental body with which you were "associated" while employed by Pennflot, was the Bureau of Highway Design, hereinafter the Bureau. With respect to this Bureau, you were provided with an outline of restricted activities pursuant to Section 3(e) of the Ethics Act. One of those restrictions was that you could not prepare, or sign as preparer, or be listed as the person who would provide technical assistance under a proposal where that proposal was to be submitted for review by the Bureau. It is this portion of the Advice which you seek us to review. Specifically, by your letter of October 2.7, 1983, you state that while you understand that you may not make personal appearances before the Bureau or attempt to influence the Bureau or participate before the Bureau in any case over which you had supervision, direct involvement, or responsibility, you question the prohibition against your name appearing on proposals. You indicate that while you fully understand the restriction against your name appearing on a "technical" proposal, you question the application of this restriction to the type or part of a proposal known as a "pricing" proposal. You have indicated that further information regarding the specific nature of a "technical" proposal and a "pricing" proposal could be obtained from Mr. Fred Bowser with the Bureau at Pennflot. We have contacted Mr. Bowser and acquired information from him which we will outline herein which will form the basis of our review and response to your request and appeal from this Advice. Mr. Bowser indicates that Pennflot's selection of consulting engineer firms to provide design services to Pennflot begins when PennDot publishes a notice of availability of such work in the Pennsylvania Bulletin. There is no pre - qualification process involved with this selection process. However, following the publication of notice in the Bulletin, firms submit letters of interest and intent along with required forms to PennDot. These forms (Nos. 254 and 255) contain information which detail the firm's experience and the type of work which they have performed and list the principals in the firm and the number of employees within the firm, differentiated and identified by classification and duties but not by name. These responses are then screened at the PennDot District Office level in the District Office where the work is to he performed. This screening process produces the District Office recommendation as to a minimum of five firms to be considered further for selection. Bernard F. Kotalik, P.E. February 24, 1984 Page 3 The process then shifts to the Consultants Selection Committee (CSC) in Pennflot in Harrisburg. The CSC is composed of the Secretary of Transportation or his designee; the Deputy Secretary for Highway Administration; a member appointed by the Secretary (usually one of the other Pennflot Deputy Secretaries); the Secretary of Administration or his designee; and the District Engineer from the District Office where the project is to be undertaken. These members of the CSC, by a secret ballot, rank the firms whose names have been submitted to them from the District Office review and screening process, and three firms are selected or "short listed" as those which will continue to be considered for selection. It should be noted that the CSC does undertake an analysis of the firms which may include identifying the principal personnel who would be associated with the project should a particular firm be selected. Following the CSC "short listing" the three firms that are remaining are invited to attend a meeting at the District Office where the work is to be performed to participate in a detailed scope -of -work meeting. This scope -of -work meeting is designed to acquaint the firms and their personnel with the exact nature of the work to be performed which is usually restated during the meeting from a written document. During this District Office meeting, it would he typical that the the person(s) who might serve as project engineer on the project, if a firm is selected or the person who would be responsible for preparing the technical or price proposals would be present so that these person(s) would be able to better prepare the proposals. Following the District Office meeting, the three firms are asked to compile a technical and a pricing proposal. The technical proposal, which is separate from the pricing proposal, outlines what the firm intends to do and the manner in which they intend to proceed in order to provide the services required. The pricing proposal is a document which indicates the number and classification of the personnel to be provided to complete the project, the hours to be attributed to each of these persons as would be needed to complete and affect the technical proposals that were presented and the cost of the project. This pricing proposal itemizes and identifies the personnel who would be expected to work on the project. Following submission of the proposals, the technical proposal is reviewed by the District Office Committee prior to the next CSC meeting. The technical proposals are assigned a rank or preference, and this ranking is presented to the CSC and defended at the next meeting of the CSC. When the CSC has completed its review and agrees on the ranking or modifies same as presented by the District Office Committee, the CSC, in addition to ranking the firms, establishes a "differential" between the firms from which the selction is to be made. For example, the CSC would indicate that the second - ranked firm would he selected only if their pricing proposal was 1O% less than the firm Bernard F. Kotalik, P.E. February 24, 1984 Page 4 which was ranked first following the review of the technical proposals. Following this ranking and establishing of the differential between the three remaining firms, the pricing proposals of the firms would be opened and reviewed. Then, the selection would be based upon the ranking (based upon the CSC review of the technical proposals) and application of the pre - established differential which had been established after review of the technical proposal and which forms the basis of establishing those circumstances in which the firm which had been ranked second or third would be selected in preference to the firm which had been ranked first after the technical proposal review. Throughout this process, it is not necessary that the District Office or the CSC be alerted to or be advised as to the individual who will serve as project manager for the firm which might be selected at least up through the scope -of -work meeting with the District Office. However, some firms, when they prepare their letters of interest indicate the personnel that they have available and provide this information as to who would serve as the project manager at that time. Also it is likely that, as set forth above, at the scope -of -work meeting at the District Office that either the project engineer or the person who will he responsible for the preparation of the technical and pricing proposals would be present. There is information available on an analysis sheet to the CSC as to who would be the principle associated with the project when the CSC undertakes its "short listing" review as set forth above. III. Applicable Law: The law to be applied to this question 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). The regulations of the Commission state: "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. Bernard F. Kotalik, P.E. February 24, 1984 Page 5 IV. Discussion: It is obvious that there is no dispute that you were a "public employee" as that term is defined in the State Ethics Act and that upon your termination of service with Pennflot, you became a "former public employee" as set forth in the Advice of Counsel referenced above. The main question which you present is whether you may prepare, sign as preparer, and have your name included on that item of information described in Part II of this Opinion as the "pricing proposal" which is presented to and reviewed by the District Office personnel and the CSC of PennDot. It is true that the definition of "representation" typically has been held by this Commission to include the act of submitting bid or contract proposals which are signed by or contain the name of the former public official or public employee. See Kilareski, 80 -054. However, application of this definition or ruling that such activities constitute a prohibited activity or "representation" has been premised upon the fact that the proposal would he submitted to the "governmental body" with which the individual former public employee or public official has been associated and would be designed to or likely to influence the award of a contract to that former public employee's or public official's new firm or employer. In such a case we have held that the inclusion of the former employee's name on such a proposal as either preparer, as technical advisor, or as the person who would serve with respect to the proposal, is an attempt to influence the award of the contract and must be prohibited. See Kilareski, supra, at page 4. However, the method by which selection of the engineering firms is undertaken as outlined above makes it clear that the technical proposal is the item which would be presented to either the District Office or the CSC in order to acquire the appointment or the contract. It is the technical proposal in this system which appears to be the document which is designed to influence the award of the contract or the appointment of a particular firm as a consulting engineer. On the other hand, the pricing proposal on which your name might have to appear as either project manager, as advisor, or staff, would he opened and reviewed only after the selection (through the ranking and the establishment of the differential between the ranked firms) had been established. The inclusion of your name on a pricing proposal would therefore, not he designed to nor could it necessarily be said to be an attempt to influence the award of or selection or ranking of the firms one of which might be your employer. As such, inclusion of your name on the pricing proposal would not, in these peculiar circumstances, be prohibited under the Ethics Act. Bernard F. Kotalik, P.E. February 24, 1984 Page 6 In this same vein, however, we believe that you must refrain from allowing your name to appear on the technical proposal, on the letter of interest, on any forms that would be submitted to the Bureau or the CSC prior to the opening and review of the pricing proposal. However, under these limited circumstances, recognizing that the pricing proposal,is utilized as outlined above, we conclude that your name could appear on this pricing proposal as the person who would provide technical assistance or on the staff of the firm selected pursuant to the technical proposal. We also make this ruling recognizing that the "governmental body" with which you have been deemed to be associated does not include every District Office within Pennfot nor does it specifically include the Consultant Selection Committee itself to which the pricing proposal is submitted. Therefore, the submission of a pricing proposal to the Consultant Selection Committee which is an entity to be viewed as distinct from the Bureau with which you were associated, is inherently less likely to be an attempt to influence or be influential even if it were to contain your name. V. Conclusion: The Advice of Counsel previously issued in this matter is affirmed in part and modified in part. Specifically, we affirm that portion of the ruling which indicates that you may not allow your name to be submitted as preparer or person would will provide technical advice or assistance on any items associated with this process outlined above for the selection of a consultant engineering firm except that you may allow your name to be submitted with respect to the "pricing proposal" within this process. In all other respects, those restrictions upon your activities as ennunciated in the Advice of Counsel should be met, and should you have any further questions with respect to your duties and responsibilities within the first year after you have terminated your employment with PennDot, please feel free to contact us again. 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. Bernard F. Kotalik, P.E. February 24, 1984 Page 7 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 By the Commission ,