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Home My WebLink About09-503-S Wanger ADVICE OF COUNSEL March 16, 2010 G.R. Wanger 3089 Stirling Road Broomall, PA 19008 09-503-S Dear Mr. Wanger: This responds to your letter dated January 21, 2009 (postmarked January 22, 2010, and received January 25, 2010), by which you requested supplemental advice from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to Section 1103(g) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(g), an individual formerly employed as a Portfolio Manager for the Pennsylvania Department of Transportation (“PennDOT”), with a job title of Senior Civil Engineer Manager, would be permitted during the first year following termination of Commonwealth employment to attend any training course(s) offered by PennDOT to both PennDOT employees and consultants. Facts: By letter dated December 26, 2008, you initially requested an advisory from the Pennsylvania State 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 with PennDOT in Engineering District 6-0 (“District 6-0”) as a Portfolio Manager, with a job title of Senior Civil Engineer Manager. In your December 26, 2008, advisory request letter, you stated that you expected to retire in the first quarter of 2009. In response to your initial advisory request, Wanger, Advice 09-503, was issued to you on January 21, 2009. Advice of Counsel 09-503 determined that in your capacity as a Portfolio Manager for PennDOT, with a job title of Senior Civil Engineer Manager, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the Pennsylvania State Ethics Commission, and that upon termination of your employment with PennDOT, you would become a “former public employee” subject to the restrictions of Section 1103(g) of the Ethics Act. The Advice determined that upon termination of your employment 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 6-0. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act and stated that for the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before PennDOT. Advice of Counsel 09-503 further addressed ten specific questions that you posed as to whether the Ethics Act would impose any prohibitions or restrictions on your activities with a new employer. Approximately one year passed from the issuance of Advice of Counsel 09-503 to the submission of your advisory request letter inaccurately dated January 21, 2009. Wanger, 09-503-S March 16, 2010 Page 2 In your most recent advisory request letter, you state that on May 1, 2009, you retired from your employment as a Portfolio Manager for PennDOT, with a job title of Senior Civil Engineer Manager. You state that you are now working for a consulting firm. You state that PennDOT offers training courses to both PennDOT employees and consultants and that such courses are usually held in the Engineering District Offices or in facilities in Harrisburg, Pennsylvania. You request supplemental advice on the sole question of whether, during the one-year period of applicability of Section 1103(g) of the Ethics Act, you would be permitted to attend any training course(s) that PennDOT offers to both PennDOT employees and consultants at any location(s). 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. The recitation of the Section 1103(g) restrictions set forth in Advice 09-503 is incorporated herein by reference. In response to your request for supplemental advice, you are advised as follows. During the one-year period of applicability of Section 1103(g) of the Ethics Act, a former public employee generally would be permitted to attend meetings held by his former governmental body if such meetings would be open to the public and the former public employee’s role would not go beyond that of a general observer. Training courses offered by PennDOT to PennDOT employees and consultants would not fall within these parameters. To the contrary, for a former PennDOT employee, the only basis for attending such a training course would be as a representative of a consultant. Therefore, you are advised that during the one-year period of applicability of Section 1103(g) of the Ethics Act, you would be prohibited from attending any training course(s) offered by PennDOT to PennDOT employees and consultants, regardless of the location of such training course(s). Cf., Confidential Advice, 06-597; Smith, Advice 05-518. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. Conclusion: During the first year following termination of your employment as a Portfolio Manager for the Pennsylvania Department of Transportation (“PennDOT”), with a job title of Senior Civil Engineer Manager, Section 1103(g) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(g), would prohibit you from attending any training course(s) offered by PennDOT to PennDOT employees and consultants, regardless of the location of such training course(s). The propriety of the proposed conduct has only been addressed under the Ethics Act. 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 Wanger, 09-503-S March 16, 2010 Page 3 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