HomeMy WebLinkAbout17-510 LynesSTATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
March 1, 2017
To the Requester:
Mr. William J. Lynes, P.E.
Dear Mr. Lynes:
17510
This responds to your letter dated January 6, 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, as a Senior Civil Engineer -- Bridges for the Pennsylvania
D artment of Transportation ( "PennDOT "), you would be considered a "public
employyee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65
Pa.C.S. § 1101 et se q., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et sue., such that upon termination of your employment with PennDOT, the
restrictions of Section 1103(g) of the Ethics Act would be applicable to you.
Facts: You request an advisory from the Commission based upon submitted
acs That may be fairly summarized as follows.
At the time that you submitted your inquiry, you were employed as a Senior Civil
Engineer — Bridges with PennDOT in Engineering District 11 -0. You have submitted
copies of your official Commonwealth position description and an organizational chart
for Engineering District 11 -0, both of which documents are incorporated herein by
reference. A copy of the job classification specifications for the p�osition of Senior Civil
Engineer — Bridges (job code 1113B) has been obtained and is also incorporated herein
by reference.
You stated that in your Commonwealth position, your primary duties included
developing plans, specifications, and estimates for bridge repair, rehabilitation, and
replacement projects. You stated that you occasionally served as one of many
members on selection committees for consultant engineering agreements and that you
reviewed and recommended consultant invoices for payment for such engineering
agreements.
You stated that your job classification was neither management nor supervisory.
You reported directly to a Civil Engineer Manager who directly reviewed and approved
your work and affixed his engineering seal to any contract drawings that you prepared.
You stated that while the Civil Engineer Manager relied on your professional
engineering judgment on many consultant contract- related issues, the authority to make
official decisions, award contracts, assign pro ects, and approve designs rested with the
Civil Engineer Manager and other PennDOT staff. You further stated that all official
decisions were made by your superiors and that all of your work was subject to review
FAX: (717) 787 -0806 0 Web Site: wwmethics.state,pa,us 0 e -mail: ethicsPstate.pa.us
nes, 17 -510
March 1, 2017
Page 2
and approval by a hierarchy of senior engineers and executives. You additionally stated
that you had no authority to directly award contracts, approve contract payments,
recommend official construction plans, or take any action that would produce a negative
economic impact on any contractor.
Per your official Commonwealth position description, you provided technical,
administrative, and engineering support and managed the resources available in the
development of highway and bridge design projects, and you participated in the
development of bid package preparation, both independently for in -house projects and
through management of consultant resources for consultant designed projects. Your
job duties and responsibilities included the following:
• Planning, developing, and designing, using current engineering practices, quality
roadway and bridge projects on time and within budget;
• Providing technical support to consultant and in -house resources to ensure
development of quality plans;
• Reviewing and approving Highway Occupancy Permits and other functional
duties as assigned by the Senior Project Manager or the Portfolio Manager;
• Preparing and /or reviewing Plan, Specification and Estimate (PS &E) packages,
done either in -house or by consultants, for projects ranging in complexity from
basic to complex;
• Developing and/or reviewing various reports and structure plans;
• Reviewing and /or approving shop drawings and local bridge designs;
• Creating estimates, including the final estimate;
• Assisting the District Project Scheduler in calculating the working days and
determining the work schedule prior to sending the PS &E package to Contract
Management;
• Preparing the special provisions to be included in the PS &E package;
• Preparing all required fiscal documents and necessary project correspondence;
• Participating in the consultant selection process and the negotiations process;
• Creating consultant work orders;
• Preparing, monitoring, and updating the project scope of work, budget, and
schedule;
• Managing projects, resources, project schedules and budgets, and delivering
projects on time and within design and construction budgets;
• Managing consultant activities and monitoring consultant efforts during project
delivery activities;
Lynos, 17 -510
March 1, 2017
Page 3
Scheduling and participating in design field views and meetings with various
parties, and maintaining liaison with internal and external partners and external
customers; and
• Certifying the quality of PS &E packages by reviewing various engineering
submissions, and coordinating other reviews with various PennDOT units and
governmental agencies.
Position Description, at 1 -2.
Per the job classification specifications under job code 1113B, the work of a
Senior Civil Engineer -- Bridges is characterized by the preparation or review of
complete engineering plans, investigations, studies and designs that have complex
features and require the independent selection of courses of action for which well -
established guidelines are not available. Examples of work performed by a Senior Civil
Engineer – Bridges include:
• Monitoring the preparation of construction plans being prepared by consultant
engineers, reviewing location studies, reviewing construction plans in progress
and upon completion, and providing guidance with regard to agency policies and
engineering standards and requirements;
• Serving as a lead engineer for a design team by reviewing all complete
calculations, plans, specifications, cost estimates, and technical correspondence
for overall technical completeness and accuracy;
• Reviewing complete engineering designs including drawings, specifications, cost
estimates, design computations, and other supporting data submitted by
consultant engineering firms for conformance with project scope and program
requirements;
• Conducting field inspections to determine the compliance status of a permitted
facility from a civil engineering standpoint and recommending appropriate
enforcement action as needed;
• Developing the civil engineering components of a statewide environmental
regulatory program, including regulations, policies, standards, procedures,
methods and technical guidance, and participating in program evaluations; and
• Overseeing outside consultants involved in the inspection of materials and
workmanship of complex road or bridge projects as a construction project
manager.
Job Classification Specifications, Job Code 11138, at 1 -3.
You stated that effective at the close of business on January 20, 2017, you would
be resigningg from your Commonwealth employment to accept employment as a
Structural Engineer with a consulting engineering firm named "Stantec Consulting
Services" ( "the Firm "), which is located in Pittsburgh, Pennsylvania. You stated that the
Firm has contracts with PennDOT --but not for Engineering District 11 -0—for
engineering consulting services. You further stated that such contracts were executed
Vto your solicitation for employment with the Firm and that you had no proprietary
knowledge which would have influenced the Firm's selection as a consultan You
additionally stated that the Firm may solicit PennDOT contracts in all eleven PennDOT
Engineering Districts and PennDOT s Central Office.
LVnes, 17 -510
March 1, 2017
Page 4
You seek guidance as to whether, as a Senior Civil Engineer — Bridges for
PennDOT, you would be considered a "public employee" as that term is defined in the
Ethics Act, such that upon termination of employment with PennDOT, you would be
subject to the post - employment restrictions of Section 1103(g) of the Ethics Act.
You pose the following additional questions to be addressed if you would be
subject to the post - employment restrictions of Section 1103(g) of the Ethics Act:
(1) Whether your former governmental body would be limited to Engineering
District 1'i -0 or would include the other ten Engineering Districts and the
Central Office;
(2) Whether your former governmental body would include the Pennsylvania
Turnpike Commission or any other Commonwealth agencies, any
counties, or any local municipalities;
(3) Whether you would be prohibited from representing the Firm on contracts
that are not administered by Engineering District 11 -0, and if so, whether
such prohibition would app/ as to contracts awarded prior to your
solicitation of employment with the Firm and/or as to contracts awarded
after you became employed with the Firm;
(4) Whether your resume and an organization chart containing your name
could be included in statements of interest submitted to any PennDOT
Engineering District(s) on behalf of the Firm;
(5) Whether you would be prohibited from articipating in marketing meetings
with any PennDOT Engineering District(s) on behalf of the Firm; and
(6) Whether you would be prohibited from working on projects that PennDOT
administers on behalf of local municipalities.
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 en age 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 Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministenal
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
Lynes, 17 -510
March 1, 2017
Page 5
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
I- n es, 17 -510
March 1, 2017
Page 6
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary-treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are defined in the Ethics Act as follows:
§ 1102. Definitions
"Ministerial action." An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
of the persons own judgment as to the desirability of the
action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
L nes, 17 -510
March 1, 2017
Page 7
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04-002; ienvo pinion 04 -0 ; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania has specifically considered and approved this Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Qua lia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended X20 a. ommw. E XIS
Pa. mwlth. January 5, 2010), allocatur denie , 607a. 708, 4 A.3d 1056 (Pa.
2010); Phillips, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonmmisterial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determinin status as a public
employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(1i), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision - makers; individuals
who prepare or .supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, etc .., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is
that in your capacity as a Senior Civil Engineer — Bridges for PennDOT, you would be
considered a "public employee" subject to the Ethics Act and the Regulations of the
State Ethics Commission.
It is clear that as a Senior Civil Engineer — Bridges for PennDOT under job code
1113B, you had the ability to take or recommend official action of a nonministerial
nature with respect to subparagraph (5) within the definition of "public employee" as set
forth in the Ethics Act, 65 Pa.�C S. §§ 1102. Specifically, the following duties and
authority set forth in the official Position Description and the job classification
specifications under job code 1113B would be sufficient to establish your status as a
"public employee" subject to the Ethics Act:
• Planning, developing, and designing quality roadway and bridge projects on time
and within budget;
• Reviewing and approving Highway Occupancy Permits and other functional
duties as assigned by the Senior Protect Manager or the Portfolio Manager;
• Preparing and/or reviewing Plan, Specification and Estimate (PS &E) packages,
done either in -house or by consultants, for projects ranging in complexity from
basic to complex;
• Creating estimates, including the final estimate;
• Participating in the consultant selection process and the negotiations process;
• Creating consultant work orders;
• Preparing, monitoring, and updating the project scope of work, budget, and
schedule;
L nes, 17 -510
March 1, 2017
Page 8
• Managing projects, resources, project schedules and budgets, and delivering
projects on time and within design and construction budgets;
• Managing consultant activities and monitoring consultant efforts during project
delivery activities;
• Reviewing complete engineering designs including drawings, specifications, cost
estimates, design computations, and other supporting data submitted by
consultant engineering firms for conformance with project scope and program
requirements;
• Conducting field inspections to determine the compliance status of a permitted
facility from a civil engineering standpoint and recommending appropriate
enforcement action as needed;
• Developing the civil engineering components of a statewide environmental
regulatory program, including regulations, policies, standards, procedures,
methods and technical guidance, and participating in program evaluations; and
• Overseeing outside consultants involved in the inspection of materials and
workmanship of complex road or bridge projects as a construction project
manager.
The foregoing duties /authority would also meet the criteria for determining status
as a public employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 1'1.1, "public employee," subparagraphs (i) and (ii).
Consequently, upon termination of employment with PennDOT, you would
become a "former public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public officiallpublic
employee with regard to "representing" a "person" before "the governmental body with
which he has been associated ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental bodv with which he has been associated
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
LVee5 17 -510
March 1, 2017
Page 9
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public officia pTT f ` i employee himself,
Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur,
pinion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies, (2) attempts to influence;
(3) submission of bid or contract proposals which are signed.by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former ggovernmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
ppropposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(8) also generally prohibits the inclusion of the name of a former public
officiallllpublic employee on invoices submitted by his new employer to the former
governmental body, even if the invoices pertain to a contract that existed prior to
termination of service with such governmental body. Shay, Opinion 91 -012. However,
if such a pre- existing contract does not involve the unit where a former public employee
worked, the name of the former public employee may appear on routine invoices if
required by the regulations of the agency to which the billing is being submitted.
AbramsNVebster, Opinion 95 -011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103(8) only restricts the former public official/public employee with
retard to representation before his former governmental body. The former public official/
public employee is not restricted as to representation before other agencies or entities.
However, the "governmental body with which a public officiallpublic employee is or has
been associated" is not limited to the particular subdivision of the agency or other
governmental body where the public official/public employee had influence or control
L nneess, 17 -510
March 1, 2017
Page 10
but extends to the entire body. See, Legislative Journal of House, 1989 Session, No.
15 at 290, 291; Sirolli, Opinion 906; Sharp, Opinion 90-009-R.
The governmental body with which you would be deemed to have been
associated upon termination of your employment with PennDOT would be PennDOT in
its entirety, including but not limited to Engineering District 11 -0. Therefore, for the first
year following termination of your employment with PennDOT, Section 1103 (g) of the
Ethics Act would apply and restrict "representation" of a "person" before PennDOT.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific
questions shall now be considered.
Your first and second questions have been addressed above.
In response to your third, fourth, and fifth questions, you are advised as follows.
Durin the first year following termination of your Commonwealth employment, Section
1103 g) of the Ethics Act would prohibit you from representing the Firm before any unit
of PennDOT with regard to any matter(s), including contract(s) not administered by
Engineering District 11 -0— regardless of whether such contract(s) would have been
awarded prior to your solicitation of employment with the Firm or after you became
employed with the Firm. Section 1103(g) of the the Act would prohibit you from: (1)
permitting your resume, an organization chart containing your name, or other material (s)
identifying you to be included in statements) of interest submitted to Engineering
District 1'I-0 or any of the other Engineering Districts; or (2) participating in marketing
meetings with Engineering District 11 -0 or any of the other Engineering Districts, as
such activity(ies) would necessarily involve prohibited representation of the Firm before
your former governmental body.
With regard to your sixth question, you are advised that Section 1103(g) of the
Ethics Act would prohibit you from working on projects that PennDOT administers on
behalf of local municipalities unless you would be able to do so without engaging in
prohibited representation before PennDOT as delineated above.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(8) only. It is expressly assumed that there has been no
use of authority of office or employment for a private pecuniary benefit as prohibited by
Section 1103(a ) of the Ethics Act. Further, you are advised that Sections 1103(b) and
1103(c) of the Ethics Act provide in part that no person shall offer or give to a public
official /public employee and no public official/public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or udgment of the public official/public employee would be influenced thereby.
Reference is made to these provisions of the law not to imply that there has been or will
be any transgression thereof but merely to provide a complete response to the question
presented.
Lastly, 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 a Senior Civil Engineer – Bridges for the Pennsylvania
Departme--nT of Transportation ( "PennDOT1, ) under job code 1113B, you would be
considered a "public employee" subject to the Public Official and Employee Ethics Act
Omission, ics Act "), 65 Pa.C.S. § 1101 et sere ., and the Re ulations of the State Ethics
51 Pa. Code § 11.1 et sec . 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 former governmental body would be PennDOT
L nos, 17 -510
March 1, 2017
Page 11
in its entirety, including but not limited to Engineering District 11 -0. For the first year
following termination of your employment with PennDOT, Section 1103(g) of the Ethics
Act would apply and restrict "representation" of a "person" before PennDOT. The
restrictions as to representation outlined above must be followed. Lastly, the propriety
of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 writingg and must be actual)
received at the Commission within thirty (30) days of the date
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 (71;f-W-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