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HomeMy WebLinkAbout17-520 RitcheySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL March 30, 2017 To the Requester: Mr. Shawn S. Ritchey, P.E. Chief Construction Engineer Keller Engineers Dear Mr. Ritchey: 17 -520 This responds to your letters dated January 11, 2017, and February 1, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission'). Issue: Whether the Public Official and Employee Ethics Act fa Ethics Act "), 65 STS. § 1101 et seq., would impose restrictions upon employment o Transportation Construction Inspector Supervisor following termination of employment with the Pennsylvania Department of Transportation ( "PennDOT "). Facts: As Chief Construction Engineer for Keller Engineers ( "the Firm "), you have authorized by Jeffrey Sutton (`Wr. Sutton ") to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. On September 23, 2016, Mr. Sutton retired from his employment as a Transportation Construction Inspector Supervisor with PennDOT. You have submitted a copy of a position description for Mr. Sutton's former position with PennDOT, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Transportation Construction Inspector Supervisor (job code 10630) has been obtained and is also incorporated herein by reference. You state that in his former position as a Transportation Construction Inspector Supervisor for PennDOT, Mr. Sutton was the lead inspector on his assignments, which primarily focused on the inspection and documentation of roadway rehabilitation projects including pavement patching, leveling, widening, and overlays. You state that r. Sutton never reviewed, ranked, or offered opinions on consultant statements of interest. The Firm has had discussions with Mr. Sutton about employing him to perform work as a construction inspector on various projects within the area of PennDOT Engineering District 9 -0 ( "District 9 -0 "). Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. Sutton to perform Highway Occupancy Permit inspections under the Firm's FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethics[2state.pa.us Ritche 17 -520 March 30, 2017 Page 2 existing contract with PennDOT and other local /municipal construction inspection contracts. Discussion. It is initially oted that pursuant to Sections 1107('10) and 1107(11) of e Ethics Act, 65 Pa.C.S. y§§ 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. In the former capacity as a Transportation Construction Inspector Supervisor for PennDOT, Mr. Sutton would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Stanisic, Opinion 98 -004; Leonard, Advice 13 -561; Kiselich, Advice 11 -517. This conclusi hiss based upon the posit -ioned ascription and the t615_c aissification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of employment with PennDOT, Mr. Sutton became 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 official/public 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 er�son, with promised or actual compensation, on any matter before the governmental bodv with which he has been associated for 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 an activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submittingg bid or contract proposals which are signed by or contain tine name of a former public official or public employee. Ritc�he , 17 -520 March 30, 2017 Page 3 "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 officiaTTu6 if employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 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 proposal, 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 official/ public 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. AbramsANebster, 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 ap earance before his former governmental body. Once again, however, the activity in his 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 11030 only restricts the former public official /public employee with regard 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 official /public 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 Ritche , 17 -520 0, 2017 Page 4 control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which Mr. Sutton is deemed to have been associated upon termination of his employment with PennDOT is PennDOT in its entiretyy. Therefore, for the first year following termination of Mr. Sutton's employment with PennDOT, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person" before PennDOT. Section 1103(g) of the Ethics Act would not prohibit Mr. Sutton from accepting employment with the Firm. However, during the first year following termination of Mr. Sutton's employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit Mr. Sutton from engaging in any activit=ve. s) that would involve prohibited representation before PennDOT as set forth During the one -year period of applicability of Section 1103( ), it would appear to be impossible, as a practical matter, for Mr. Sutton to perform I ighway Occupancy Permit inspections under the Firm's existing contract with PennDOT without transgressing Section 1103(g). Section 1103(8) of the Ethics Act also would prohibit Mr. Sutton from performing work for the Firm under other local /municipal construction inspection contracts unless he would be able to do so without engaging in prohibited representation before PennMTas delineated above. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office or employment, or confidential information received by being in the public position, for a private pecuniary benefit as prohibited by Section 1103�a) of the Ethics Act Further, you are advised that Sections 103(b) and 1103(c) of the thics 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 judgment 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 hereof 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: In the former capacity as a Transportation Construction Inspector upervisor for the Pennsylvania Department of Transportation ( "PennDOT "), Jeffrey Sutton ( "Mr. Sutton ") would be considered a " ublic employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "� 65 Pa.C.S. § 1101 et seg., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1- et seq. Upon termination of his employment with PennDOT, Mr. Sutton became a '`former public employee" subject to Section 1103(8) of the Ethics Act. The former governmental body is PennDOT in its entirety. For the first year following termination of Mr. Sutton's employment with PennDOT, Section 1103(8g of the Ethics Act would apply and restrict "re resentation" of a "person" before PennDOT. The restrictions as to representation outlined above must be followed. Section 1103(8) of the Ethics Act would not prohibit Mr. Sutton from accepting employment with Keller Engineers ( "the Firm "). However, during the first year following termination of Mr. Sutton's employment with PennDOT, Section 1103(8) of the Ethics Act would prohibit Mr. Sutton from en aging in any activity(ies) that would involve prohibited representation before PennDOT as set forth above. During the one -year period of applicability of Section 1103(g), it would appear to be impossible, as a Ritche , 17 -520 arc 30, 2017 Page 5 practical matter, for Mr. Sutton to perform Higghwa Occupancy Permit inspections under he Firm's existing contract with PennDOT without transgressing Section 1103(8 ). Section 1103(g) of the Ethics Act also would prohibit Mr. Sutton from performing work for the Firm under other local /municipal construction inspection contracts unless he would be able to do so without engaging in prohibited representation before PennDOT as delineated above. 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 writing and must be actuall received at the Commission within thirty (30) days of the date o ►s 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 We such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, .Uv r.- Robin M. Hittie Chief Counsel