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HomeMy WebLinkAbout80-054 KilareskiSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 3, 1980 OPINION OF THE COMMISSION Walter P. Kilareski Assistant Professor of . Civil Engineering The Pennsylvania State University Research Building B University Park, PA 16802 RE: Section 3(e) Bid Proposals, Preparation Dear Mr. Kilareski: I. Issue: 80 -054 You request an opinion in regard to whether, as a former employee of the Department of Transportation, currently serving as a Professor of Civil. Engineering at the Pennsylvania State University you may: 1. Participate in a research project for the Pennsyl- vania Department of Transportation as "principal investigator" or as a co- principal investigator on a project. 2. Participate on a project on the basis of providing technical assistance and input only. You also ask about the duration of any prohibition from participation on the projects with the Pennsylvania Depart- ment of Transportation. IT. Factual Basis for Determination: From September 21, 1979 through August 29, 1980 you served as a Special Studies Coordinator with the Pennsyl- vania Department of Transportation. While employed with the Department of Transportation ( PennDot), you worked with the office of Research and Special Studies and reported directly to the Secretary of PennDot. During your tenure you were intimately involved with research projects and contracts. Specifically, you reviewed requests for proposals and the proposals themselves upon receipt. Walter P. Kilareski December 3, 1980 Page 2 After leaving PennDot, you assumed a position as an Assistant Professor of Civil Engineering at the Pennsylvania State University (Penn State). In this new position you may be asked to prepare responses to a request for proposals solicited by PennDot. You may write the technical response to the bid proposal and you may be listed as an individual who will either be principal investigator or provide techni- cal assistance only on the project in question. If you are the principle investigator on a project or designated as such, the bid proposal would be signed by you. In addition, the bid proposal would indicate who would serve as principal investigator, technical assistant, and other staff for the research project proposed. The proposals would then be submitted to the Pennsyl- vania Department of Transportation and a committee would rank those proposals and award the contracts. After the proposals were accepted, the person designated as principal investigator on the proposal would supervise the contract awarded and may become involved with personnel within the Department of Transportation on any contract proposal problem or changes. III. Applicable Law: The most pertinent definition which would be applicable in your circumstance would be the definition of public employee which is as follows: "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recom- mending official action of a non- ministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) Inspecting, licensing, regulating, or auditing_ any person; or (5) any other activity where the official action has an economic impact of a greater than de minimus nature on the interests of any person. Walter P. Kilareski December 3, 1980 Page 3 Public employee shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties." 65 P.S. 401. In addition, the provisions of Section 3(e) of the Ethics Act as follows must be reviewed. This Section provides that: IV. Discussion: "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) . There is no dispute or doubt that in your position with PennDot you were a "public employee." Thus, the questions outs:.anding revolve around a discussion of what the term "representing" in relation to Section 3(e) of the Ethics Act means in your situation. In this regard the Commission has had occasion to review the term "representing" within this Section of the Act on several previous occasions. In general, the Commission has determined that the prohibition of Section 3(e) extends to such things as: 1. personal appearance before the governmental body with which you were associated, including but not ]. to negotiations with that body; 2. attempts to influence that governmental body; 3. participation in any manner in any case over which you had supervision, direct involvement, or respon- sibility while employed by the governmental body; 4. lobbying, that is representing the interests of any person before that governmental body to influence that body in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. Walter P. Kilareski December 3, 1980 Page 4 These same Opinions and the other Opinions upon which they were based indicate that a former public employee may appear in a third form such as, State or Federal Court, may make general informational inquiries of the nature made by the public of their former governmental body, and may utilize the knowledge and expertise gained in their tenure as public employees, except as set forth in numbers 1 through 4 above. In addition, with specific reference to the question of negotiating any contract with your formal governmental body, the Commission has' stated that a former employee may administer or manage such a contract awarded to your present employer (Perin State) by your former employer (PennDot) provided that you did not attempt to influence the decision to make such an award. See Cutt, 79 -023. The problem arising in your case is whether the mere fact that you may prepare and sign the bid proposal or that your name appears as an employee who will serve in regard to that proposal is within the prohibition of an "attempt to influence" the former governmental body with which you were associated. It is the Commission's opinion that in accor- dance with their former decisions you may not prepare, sign and file such a proposal. You may assist in preparing such items where another person signs as the preparer or in your case the principal investigator. The mere fact that your name may be referred to in the bid proposal as someone who will work on the project or as someone who will provide technical assistance constitutes an attempt by you to influence your former governmental body. It identifies those individuals as required by the request for proposals, who will be supplying the services to the governmental body in question. However, the inclusion of your name on the proposal will surely influence the former governmental body's determination as to whether the bid proposal should be rejected or accepted. It is, per se, an attempt by you to influence the award of the contract and must be prohibited. Consequently, we believe that you may participate in research projects and contracts awarded to the Pennsylvania State University by the Pennsylvania Department of Transpor- tation. However, your participation must not include your direct preparation of or signature of the bid proposals or your participation and identification -on the project in question as principal investigator. You may provide techni- cal assistance on the project and you may assist in prepara- tion of the proposals or bids, except for the signature of same. However, your name may not appear on the proposal to identify you as a person who will provide technical assistance on the project or who will administer the contract if awarded to Penn State. If Penn State secures a contract given these restrictions, you may administer that contract but you may not negotiate it or make changes to that contract. Walter P. Kilareski December 3, 1980 Page 5 The prohibitions outlined above will last for a one - year period from the date you terminated your employment with the Pennsylvania Department of Transportation. See Wagner, 80 -042. V. Conclusion: You are a former public employee and your conduct as such is to be guided by this Opinion. You are prohibited for the one -year period after you left PennDot from: 1. personally appearing before the governmental body with which you were associated, PennDot: 2. preparing bid proposals to be submitted to Penn Dot by your employer (Penn State) where that preparation includes signing those proposals and /or participating in the proposed project as principal investigator or if your name appears on the proposal as the person to provide technical assistance or to administer the contract, if awarded; 3. attempting to influence your formal governmental body by other means, including lobbying, that is representing the interests of any person as to legislation, regulations, etc.; 4. Participating in any manner in any case or contract over which you had supervision, direct involvement, or responsibility while employed by PennDot, except that you may administer but not "negotiate" any contract if awarded in accordance with the limitations expressed herein or otherwise. You are not prohibited from appearing in a third forum, such as State or Federal Court, making informational inquiries of the nature made by the general public to PennDot, and more importantly, utilizing the knowledge and expertise gained in your tenure as a public employee, except as set forth above. 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 Walter P. Kilareski December 3, 1980 Page 6 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. SSC /rdp PAUL J.► ITH Chairman