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HomeMy WebLinkAbout10-595-S Grassetti ADVICE OF COUNSEL May 13, 2011 Stephen J. Grassetti, Jr., P.E. 980 Detter’s Mill Road Dover, PA 17315 10-595-S Dear Mr. Grassetti: This responds to your letter dated March 27, 2011, and your email of March 31, 2011, by which you requested supplemental advice from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(g), would impose any restrictions upon employment of a County Maintenance Manager with a job title of Senior Civil Engineer Manager following termination of employment with the Pennsylvania Department of Transportation (“PennDOT”). Facts: By letter dated May 24, 2010, you submitted an initial request for an advisory from the Pennsylvania State Ethics Commission regarding the post- employment restrictions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). At the time of your initial inquiry, you were employed with PennDOT as the County Maintenance Manager for the York County Maintenance Office, with a job title of Senior Civil Engineer Manager. In your May 24, 2010, advisory request letter, you stated that you were considering retiring from Commonwealth employment and starting a new career in the private sector with a consultant engineering firm or a highway/bridge contractor that does work for PennDOT. In response to your initial advisory request, Grassetti, Advice 10-595, was issued to you on July 12, 2010. Advice of Counsel 10-595 determined that in your capacity as a County Maintenance Manager, 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 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 the governmental body with which you would be deemed to have been associated upon termination of your Commonwealth employment would be PennDOT in its entirety, including but not limited to the York County Maintenance Office. 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 10-595 further stated, inter alia: You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with a Grassetti, 10-595-S May 13, 2011 Page 2 consultant engineering firm or a highway/bridge contractor that does work for PennDOT. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would involve prohibited representation before PennDOT as set forth above. Grassetti, Advice 10-595, at 4. In your March 27, 2011, advisory request letter, you state that you remain employed with PennDOT as the County Maintenance Manager for the York County Maintenance Office and that you are once again contemplating retiring from your Commonwealth employment. Immediately following your retirement from the Commonwealth, you would like to work for a consulting engineering firm (“Firm”) that currently has a signed and executed Municipal Agreement (“Agreement”) with a city (“City”) in Pennsylvania to provide construction management and inspection services for the City. In your email of March 31, 2011, you state that you would be one of three or four Firm employees assigned to a project (“the Project”) funded mostly by the federal government. You state that representatives from the Federal Highway Administration and the local PennDOT District would occasionally stop by the Project. You further state that you would not have any interaction with any PennDOT employee who might stop by the Project and that one of the other Firm employees assigned to the Project would deal directly with any PennDOT representative. You request supplemental advice on the sole question of whether the Ethics Act would impose any restrictions upon you with regard to accepting employment with the Firm. 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 10-595 determined your status as a “public employee” subject to the Ethics Act. The recitation of the Section 1103(g) restrictions set forth in Advice 10-595 is incorporated herein by reference. In response to your request for supplemental advice, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm. However, during the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve having any direct contact with PennDOT or PennDOT personnel on behalf of the Firm or any other contact within the ambit of prohibited representation as set forth in Advice 10-595. Such prohibited representation would include being present when PennDOT representative(s) would stop by the Project. Cf., Ziegler, Opinion 98-001. 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. Grassetti, 10-595-S May 13, 2011 Page 3 Conclusion: Based upon the submitted facts that: (1) you remain employed with the Pennsylvania Department of Transportation (“PennDOT”) as the County Maintenance Manager for the York County Maintenance Office; (2) you are once again contemplating retiring from your Commonwealth employment; (3) immediately following your retirement from the Commonwealth, you would like to work for a consulting engineering firm (“Firm”) that currently has a signed and executed Municipal Agreement (“Agreement”) with a city (“City”) in Pennsylvania to provide construction management and inspection services for the City; (4) you would be one of three or four Firm employees assigned to a project (“the Project”) funded mostly by the federal government; (5) representatives from the Federal Highway Administration and the local PennDOT District would occasionally stop by the Project; and (6) you would not have any interaction with any PennDOT employee who might stop by the Project, and one of the other Firm employees assigned to the Project would deal directly with any PennDOT representative, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm. However, during the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve having any direct contact with PennDOT or PennDOT personnel on behalf of the Firm or any other contact within the ambit of prohibited representation as set forth in Advice 10-595. Such prohibited representation would include being present when PennDOT representative(s) would stop by the Project. 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 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