HomeMy WebLinkAbout86-010 BocuskieRenjamin n. Rocuskie, P.E.
RO5 North Fairville Avenue
Harrisburg, PA 17112
I. Issue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
DECIDEDN�V 1 ►yOO
MAILED fNUV 'mob I�OD
86 -010
Re: Former Puhlic Employee; Section 3(e), Rureau Director, Department of
Transportation, Governmental Rody
near Mr. Rocuskie:
This responds to your appeal of Advice of Counsel, No. R6 -509, issued on
October 1, 1486.
What is the extent of the "governmental body" of a Rureau Director in the
Pennsylvania Department of Transportation for the purposes of the one year
representation restrictions of the State Ethics Act.
II. Factual Basis for Determination:
On September 3, 19R6, you requested the advice of the State Ethics
Commission regarding any restrictions that would he imposed upon you by virtue
of the State Ethics Act upon your termination of service with the Commonwealth
of Pennsylvania.
On June 25, 1985, you retired from the Pennsylvania Department of
Transportation after 3n years of service. At the time of your retirement, you
were the Director of the Rureau of Construction and Materials. Your
classification, in this respect, was Highway Engineer Manager. The position,
in which you served, was considered a Senior Executive Manager position.
You were responsible for planning, organizing and directing high impact
and complex highway engineering program divisions. You were involved in
directing a significant portion of the central office highway engineering
activities for the Department of Transportation. Your duties, in this
respect, included the administration of the contract quality control program
Benjamin R. Rocuskie, P.F.
Page 2
for construction. Work in this position included the planning, development
and control review of assigned program activities and the coordination and
integration of this work at the central office and district level. You were
responsihle directly to the Reputy Secretary for Highway Administration and
the Chief Engineer. You also participated in the formulation of departmental
nhjectives, policies, programs and standards. You provided direction and
guidance to division supervisors and district engineers. You were also
responsihle for all hudgeting, programming, personnel assignments and
reporting relationships in the Rureau. You also recommended design changes to
the Rureau of Resign, as such pertained to materials and construction.
nn October 1., 1986, Advice of Counsel, No. 86 -6n9 was issued generally
outlining the restrictions set forth under the State Ethics Act on the
activities of former public employees within the one year period following
their termination of governmental service. 65 P.S. 6403(e). That advice
indicated that the restrictions set forth in the Act, the regulations of the
State "Ethics Commission and previous opinions of the Commission, were
apps cah',e to you in your dealings with the Pennsylvania Department of
Transportation in its entirety.
fn October R, 1986, you requested reconsideration of the Advice of
Counsel insofar as it extended your governmental hody to the entire Department
of Transportation. You specifically asserted, that while your activities were
exercisers throughout the department, your control was limited in the districts
and your governmental body should, thus, he limited to the Rureau of
Construction and Materials.
Oh November 19, 1986, you provided additional information at a puhlic
meeting of the State Ethics Commission. As part_of your duties, you were
responsihle for insuring that the engineering districts in the department and
the contractors engaged in district projects were performing in accordance
with departmental standards. In this respect, you were primarily involved in
contract management. Contract management i.e., assuring their ahility to
perform, as well as compliance monitoring. In the event that your Rureau
finds a prohlem in contractor performance, you have the authority to recommend
to the appropriate district engineer a course of action to remedy said
prohlem. If the problem is not solved, you may take the matter to the Deputy
Secretary of Highway Administration with a recommendation thereon.
Your have also advised that you can and have, in the past, recommended
contractor suspension for failure to comply with department standards. These
recommendations, you advised, were generally followed.
You also had the authority to recommend actions by other bureaus such as
the Bureau of Resign and you worked closely with all hureaus and units within
the Office of Highway Administration.
Renjamin fl. Rocuskie, P.E.
Page 3
In addition to your statements, we have also reviewed your job
description, your position specification, (112lfl), and the fepartment
organizational chart, all of which are incorporated herein hy reference.
III. fliscussion:
At the outset, we note that you have not appealed the Advice of Counsel
insofar as it was determined that you were a puhlic employee suhject to the
provisions of the State Ethics Act. 65 P.S. S4f12. Additionally, you have not
contested any of the specific "representation restrictions" outlined in that
advice. As such, the only question to he decided is the extent of your
governmental hody for the purpose of the one year representation
restrictions.
Generally, the previously issued Advice of Counsel sets forth the
relevant restrictions that are placed upon former puhlic employees hy the
State Ethics Act. As noted in that advice, the Ethics Act provides as
fol lows:
Section 3. Restricted activities.
(e) No former official or puhlic 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 hody.
65 P.S. 403(e).
The Advice of Counsel, as a preliminary matter to determining the nature
and scope of the restrictions that were placed upon you, reviewed the concept
of "governmental hody" in order to determine the extent to which such
restrictions would apply. In this context and as set forth in the advice, the
State Ethics Commission has previously ruled that the governmental hody with
which an individual is deemed to have been associated during his tenure of
puhlic office or employment, extends to those entities where he had influence,
responsibility, supervision, or control. See, Ewing, 79 -010; Kury v.
Commonwealth of Pennsylvania, State Ethics Commission, 62 Pa. Comm. Ct. 174,
435 A.2d 940 (1981). The determination as to whether a particular official or
employee exercises the type of influence, responsibility and control, as set
forth ahnve, is garnered from a review of the individual's duties and
responsihilities as set forth in their letters of request, their joh
descriptions, and their classification specifications.
Ruffs ngton, R6 -0051.
It is clear, from all of the facts presented, that while you did not have
supervisory authority over the engineering districts and other bureaus within
the office of Highway Administration, you exercisers significant
responsihilities and influence throughout that office. Your ahility to
recommend design changes, to recommend changes in district projects and to
recommend contractor suspension are the type of duties and functions hy which
the governmental hody with which one is associated is determined.
Renjamin O. Rocuskie, P.E.
Page 4
You functioned as a key component of the Office of Highway Administration
and were instrumental in many construction projects. Thus, we helieve that
your governmental hody extends to the Office of Highway Administration. This
would include all hureaus, divisions and offices therein, as well as the
eleven engineering districts.
We also note, that we have found no evidence that your responsibility,
influence and control extend beyond the Office of Nighway Administration and
its components. As such, we do not helieve that there is any department wide
restriction imposed hy the State Fthics Commission.
TV. Conclusion:
The governmental hody of the Director of the Bureau of Construction and
Materials in the Pennsylvania department of Transportation, for the purposes
of the one year representation restrictions of the State Ethics Act, is the
hureaus, divisions and other offices under the Deputy Secretary for Highway
Administration, including the eleven engineering districts. The previously
issued Advice of Counsel is herehy modified insofar as it determined that the
governmental hody was the Pennsylvania Department of Transportation,
generally.
The Advice of Counsel is affirmed in all other respects insofar as it
indicated the representation restrictions applicahle under the State Ethics
Act.
Pursuant to Section 7(01(i), this opinion is a complete defense in any
enforcement proceeding initiated hy 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 puhlic record and will he made availahle 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 wily the
opinion requires reconsideration.
Ry the Commission,
G. Sieher Pancoast
Chairman