HomeMy WebLinkAbout17-542 CessnaSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P0. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
July 6, 2017
To the Requester:
Mr. H. Daniel Cessna, P.E.
Dear Mr. Cessna:
17 -542
This responds to your letter dated May 5, 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
p�S. V 101 et se ., would impose restrictions upon employment -of a Transportation
District ecuOW— Tollowing termination of employment with the Pennsylvania
Department of Transportation ("PennDOT").
Facts: You request an advisory from the Commission regarding the post -
empfoyment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
At the time that you submitted your inquiry, you were employed with PennDOT
as the Transportation District Executive for Engineering District 11 -0, which
encompasses Allegheny, Beaver, and Lawrence Counties. 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 position of
Transportation District Executive (lob code 11730) has been obtained and is also
incorporated herein by reference.
You stated that you would be resigning from your Commonwealth employment
effective May 19, 2017, and that you would be taking a position as a Senior Vice
President of Michael Baker International (.`the Firm "). You stated that in your role with
the Firm, you will serve as the Pennsylvania Headquarters Region Director and lead the
Firm's efforts in the Commonwealth in transportation and other areas. You further
stated that the Firm's clients include PennDOT, the Pennsylvania Turnpike
Commission, the City of Pittsburgh, Allegheny County, and various other municipalities
and counties that you have frequently had business dealings with in your
Commonwealth position, and universities, various divisions of the federal government,
and private businesses that you may have interacted with in your Commonwealth
position.
Based upon the above submitted facts, you stated:
FAX: (717).787-0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics(@state.pa.us
Cessna, 17 -542
July 6 T2017
Page 2
I am requesting advice on the following:
The types of business dealings that are restricted with
the Pennsylvania Department of Transportation,
Pennsylvania Turnpike Commission, City of
Pittsburgh, Allegheny County, and other municipalities
and counties within and outside my current position's
geographical boundaries.
The types of questions that I can respond to, relating
to information or knowledge that I possess as a result
of my current position, that would not be otherwise
available, and may impact the organization's decision
making without obtaining same, which. in no way
relates to any business with my future position, from
the Pennsylvania Department of Transportation,
Pennsylvania Turnpike' Commission, City of
Pittsburgh, Allegheny County, and other municipalities
and counties within and outside my current position's
geographical boundaries.
The types of business dealings that are restricted with
Southwestern Pennsylvania Commission, the
Metropolitan Planning Organization (MPO) for
Southwestern Pennsylvania, where I am a member,
as a required duty of my current position.
4. The types of business dealings that are restricted with
the Pittsbur h Downtown Partnership, where I serve
as an ex- officio board member. While this role is not
a requirement of my position as Transportation
District Executive, it was because of my position that I
was invited to serve in this role.
5. The types of activities, industry specific issue
discussion and collaboration that are restricted, with
employees of my current organization or any
organization that I interact with in the performance of
the duties of my current position, as i continue as a
Board Member of the American Society of Highway
Engineers (ASHE) Pittsburgh Section, my role as
President of the Engineers' Society of Western
Pennsylvania (ESWP), and my role as Vice -Chair of
the Industrial and Professional Advisory Council
(1PAC) for the Civil Engineering Department of the
pPennsylvania State University; upon my departure
from my current position as these are not required by
my current position, but are voluntary.
The types of engagement that are restricted, at
events such as industry conferences, golf outings,
charity events, sports events, etc. that may or may not
be hosted by my current organization, any
organization that I have been involved with in the
duties of my current position, or other organizations;
Cessna, 17 -542
uTT6, 2017
Page 3
that are attended by employees of my current
organization or any organization that I have been
involved with in the duties of my current position.
May 5, 2017, advisory request letter, at 1 -2.
With respect to your third question above, it is administratively noted that a
Metropolitan Planning Organization is the policy board of an organization established
pursuant to federal law to carry out the metropolitan transportation planning process
required under federal law. See, 23 USCS § 134. As to your fourth question above, it
is administratively noted that per the Pittsburgh Downtown Partnership website, the
Pittsburgh Downtown Partnership was formed by downtown businesses, professionals,
civic organizations, foundations, and residents to advance initiatives that foster
economic vitalityy and improve downtown Pittsburgh. See,
http:Ildowntownpittsburgh. com /about -pdk/.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the t��Tics Act, 65 PaL.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 disc osed all of the material facts.
As a Transportation District Executive for PennDOT, you 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; Hoffman, Advice 07 -507.
This conclusion si based upon the position description and the job classification
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 your employment with PennDOT, you would
become a "former public employee" subject to Section 1103(g) of the Ethics Act.
While Sectiori 11030 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.-�RNo 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).
Cessna, 17 -542
u�62017
Page 4
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined to 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
submittingg bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"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 Ipub iI c 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 governmental 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(g) 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 apre- 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. AbramslAebster,
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
Cessna, 17 -542
July 6 ^2017
Page 5
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in Phis 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(g) only restricts the former public official/public employee with
regard to representation before his former governmental body. The former public
officiallpublic 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
control but extends to the entire body. See, Leclislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; arp, 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(8) of the
Ethics Act would apply and restrict "representation" of a "person" before PennDOT. In
particular, during the first year following termination of our employment with PennDOT,
Section 1103(8) of the Ethics Act would prohibit you from performing any job duty(ies)
for your new employer, the Firm, that would involve prohibited representation before
PennDOT as set forth above.
Your six specific questions shall now be addressed.
In response to your first, third, and fourth questions, you are advised as follows.
During the first year following termination of your employment with PennDOT,
Section 1103(8) of the Ethics Act would prohibit you from engaging in business dealings
with PennDOT to the extent such business dealings would involve prohibited
representation before PennDOT as delineated above. Section 1103(g) of the Ethics Act
would not prohibit you from engaging in business dealings with: (1) the Pennsylvania
Turnpike Commission; (2) the City of Pittsburgh, Allegheny County, or other
municipalities or counties located within or outside the geographical boundaries of
Engineering District 11 -0; (3) the Southwestern Pennsylvania Commission; or (4) the
Pittsburgh Downtown Partnership, subject to the condition that in so doing, you would
not engage in prohibited representation before PennDOT.
With regard to your second question, you are advised that Section 1103(g) of the
Ethics Act would prohibit you from responding to question(s) from PennDOT
off icialslstaff— including but not limited to question(s) pertaining to information or
knowledge you would possess as a result of your employment with PennDOT which
would not be otherwise available —to the extent that you would be acting on behalf of
the Firm in any activity involving PennDOT. Section 1103(8) of the Ethics Act would not
prohibit you from responding to question(s) from officials s aff of: (1) the Pennsylvania
Turnpike Commission.; or (2) the City of Pittsburgh, Allegheny County, or other
municipalities or counties located within or outside the geographical boundaries of
Engineering District 11 -0, as long as in so doing, you would not engage in prohibited
representation before PennDOT.
In response to your fifth question, you are advised that Section 1103(g) of the
Ethics Act would prohibit you in your capacity(ies) as: (1) a Board Member of the
Cessna, 17 -542
July 6 2017
Page b
American Society of Highway Engineers (ASHE) Pittsburgh Section; (2) President of the
Engineers' Society of Western Pennsyylvania (ESWP); or (3) Vice -Chair of the Industrial
and Professional Advisory Council (IPAC) for the Civil Engineering Department of the
Pennsylvania State University, from engaging in industry specific issue discussion and
collaboration or other activity(ies) involving employee(s) of PennDOT or other
organizations if your activity(ies) would result in proh� ited representation before
'g 1 OT, such as for example, by making known to PennDOT your work for the Firm.
With regard to your sixth question, you are advised that Section 1103(g) of the
Ethics Act would prohibit you from attending events such as industry conferences, golf
outings, charity events, sports events, and the like hosted by PennDOT or other
organizations unless yyou would be able to do so without engaging in prohibited
representation e ore PennDOT. If officials /staff of PennDOT would be in attendance at
such an event, it would be difficult if not impossible, as a practical matter, for you to
attend the event without running afoul of Section 1103(8 }. If your attendance at such an
event would make known to PennDOT your work for the Firm, such would necessarily
involve prohibited representation before PennDOT.
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, or confidential information received by being in
the public position, for a private pecuniary benefit as prohibited by Section IINa) of
the Ethics Act. Further, you are advised that Sections 1103(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
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 Transportation District Executive for the Pennsylvania
epartment of Transportation 'PennDOT "), ou would be considered a 'Public
employyee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65
P p'o § 1101 et se q.,
and the Regulations of the State Ethics Commission, 51 Pa:
Code § 11.1 et se . Upon termination of your employment with PennDOT, you would
become a former public employee subject to Section 1103(8) of the Ethics Act. The
former governmental body would be PennDOT in its entirety, including but not limited to
Engineeringg District 11 -0. For the first year following termination of your employment
with PennDOT, Section 1103(8) 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.
Cessna, 17 -542
July 6, Page 7
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 actual!
received at the Commission within thirty (30) days of the date of this
vice 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,
obin M. Hittie
Chief Counsel