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Home My WebLink About06-570-S HAMMONDScott Hammond RR 2 Box 106 Hollidaysburg, PA 16648 Dear Mr. Hammond: ADVICE OF COUNSEL December 27, 2007 06 -570 -S This responds to your letter dated November 9, 2007, received November 14, 2007, by which you requested supplemental advice from the State Ethics Commission. Issue: Whether, pursuant to Section 1103(g) of Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g), an Environmental Planner 2 who would terminate employment with the Commonwealth of Pennsylvania Department of Transportation ( "PennDOT "), Engineering District 9 -0 ( "District 9 -0 "), to work in the private sector for or as a consultant, would be permitted to work on and bill hours with respect to projects for every entity of PennDOT, including District 9 -0, as a result of having moved from the Design Unit to the Maintenance Division of District 9 -0 prior to termination of Commonwealth employment. Facts: By letter dated June 5, 2006, you initially requested an advisory from the tate Ethics Commission regarding the post - employment restrictions of Section 1103(g) of the Ethics Act. At the time of your initial inquiry, you were employed as an Environmental Planner 2 in the Design Unit of PennDOT Engineering District 9 -0 ( "District 9 -0 "). In response to your initial advisory request, Hammond, Advice 06 -570 was issued to you on July 3, 2006. Advice 06 -570 determined that in your capacity as an Environmental Planner 2 with PennDOT, you would be considered a "public employee" subject to the Ethics Act, and that upon termination of service with PennDOT, you would become a "former public employee' subject to the restrictions of Section 1103(g) of the Ethics Act. Advice 06 -570 determined that upon termination of your service with PennDOT, the governmental body with which you would be deemed to have been associated would be PennDOT in its entirety including, but not limited to, District 9 -0. Advice 06 -570 set forth the restrictions of Section 1103(g) and stated that for the first year following termination of your service with PennDOT, Section 1103 ) of the Ethics Act would apply and restrict "representation" of "persons" before PennDOT. Advice 06- 570 further stated, inter alia: Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiry shall be addressed. You ask whether your name may appear on bills for work performed for a new employer on PennDot contracts which were awarded to the employer in engineering districts other than District 9 -0 prior to your termination date. You are Hammond, 06 -570 -S December 27, 2007 Page 2 advised that if you would perform work on pre - existing contracts a new employer had with PennDot before you left your employment with PennDot, and such contracts did not involve the "unit" of PennDot where you formerly worked, specifically District 9 -0, your name could appear on routine invoices as to those contracts if required by the regulations of PennDot. See, Abrams/Webster, Opinion 95 -011. However, the foregoing is limited to the submission of billing hours. You would be prohibited by Section 1103(g) from working on the PennDot contracts when you would have direct contact with PennDot personnel or any other contact within the ambit of prohibited representation. Hammond, Advice 06 -570, at 3 -4. Approximately sixteen (16) months passed from the issuance of Advice 06 -570 to the submission of your November 9, 2007, advisory request letter. In your November 9, 2007, advisory request letter, you state that during the past sixteen months, you have been working in the same civil service classification in the Maintenance Division of District 9 -0 rather than in the Design Unit of said District. You have submitted a copy of your current official position description, which is incorporated herein by reference. It is noted that per your position description, you are still an Environmental Planner 2 for PennDOT in District 9 -0. In your November 9, 2007, advisory request letter, you express your view that pursuant to Advice 06 -570, following termination of Commonwealth employment, you would be permitted to complete work tasks on and bill hours with respect to contracts awarded by any entity of PennDOT other than Engineering District 9 -0. You state that you are considering terminating your employment with the Commonwealth and working in the private sector for or as a consultant. You request supplemental advice on the sole question of whether, as a result of moving from the Design Unit of District 9 -0 to the Maintenance Division of District 9 -0, you would be permitted to work on and bill hours with respect to projects for every entity of PennDOT, including District 9 -0, if you would terminate your employment with PennDOT and begin working in the private sector for or as a consultant. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. It is further initially noted that Advice 06 -570 determined your status as a "public employee" subject to the Ethics Act, set forth the restrictions of Section 1103(g) of the Ethics Act, and answered the uestions that you submitted in 2006. This Supplemental Advice will not reiterate matters addressed by Advice 06 -570, except to the extent necessary to address the sole question that you have now posed. In response to your request for supplemental advice, you are advised as follows. It appears that you have misconstrued the holding in Abrams/Webster, Opinion 95 -011. Abrams/Webster held that if a pre - existing contract does not involve the unit where the former public employee worked, the name of the former public employee may Hammond, 06 -570 -S December 27, 2007 Page 3 appear on routine invoices submitted to his former governmental body if required by the regulations of the agency. Id. As noted in Advice 06 -570, the holding of Abrams/Webster is limited to the submission of billing hours. The Abrams/Webster Opinion did not alter the fact that Section 1103(g) would prohibit a former public employee from: (1) having direct contact with the former governmental body or its personnel on behalf of a private employer or client; or (2) having any other contact within the ambit of prohibited representation. In applying Abrams/Webster, supra, to the instant matter, you are advised that during the one -year period of applicability of Section 1103(g), if you would perform work for or as a consultant on PennDOT contracts that existed before you terminated employment with PennDOT, and if such contracts would not involve the "unit" of PennDOT where you formerly worked, specifically District 9-0, your name could appear on routine invoices submitted to PennDOT as to those particular pre- existing contracts if required by the regulations of PennDOT. However, the foregoing is limited to the submission of billing hours. Section 1103(g ) of the Ethics Act would still prohibit you from: (1) having direct contact with PennDOT or PennDOT personnel on behalf of a private employer or client; or (2) having any other contact within the ambit of prohibited representation as set forth in Advice 06 -570. The submitted fact that for the past sixteen (16) months, you have been working with the Maintenance Division of District 9 -0 rather than the Design Unit of said District would not alter the above. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As an Environmental Planner 2 with the Commonwealth of Pennsylvania Department of Transportation ( "PennDOT ") in Engineering District 9 -0 ( "District 9-0"), you are provided with the following supplemental advice as to Hammond, Advice 06 -570. Upon termination of service with PennDOT, during the one - year period of applicability of Section 1103(g) of the Public Official and Employee Ethics Act "Ethics Act"), 65 Pa.C.S. § 1103(g), if you would perform work for or as a consultant on PennDOT contracts that existed before your termination of employment with PennDOT, and if such contracts would not involve District 9 -0, your name could appear on routine invoices submitted to PennDOT as to those particular pre- existing contracts if required by the regulations of PennDOT. However, the foregoing is limited to the submission of billing hours. Section 1103(g) would still prohibit you from: (1) having direct contact with PennDOT or PennDOT personnel on behalf of a private employer or client; or (2) having any other contact within the ambit of prohibited representation as set forth in Advice 06 -570. The submitted fact that for the past sixteen (16) months, you have been working with the Maintenance Division of District 9 -0 rather than the Design Unit of said District, where you previously worked, would not alter the above. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 1107(11), an 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, provided the requester has disclosed Hammond, 06 -570 -S December 27, 2007 Page 4 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel