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HomeMy WebLinkAbout17-578 RomanoPHONE: 717 -783 -1610 TOLL FREE: 1- 800 -932 -0936 ADVICE OF COUNSEL December 1, 2017 To the Requester: Mr. Louis J. Romano Dear Mr. Romano: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 17 -578 This responds to your letter dated October 11, 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 Pa.G.S. § 1101 et seq., would impose restrictions upon employment of a Senior Civil Engineer Supervisor — Transportation following termination of employment with the Pennsylvania Department of Transportation ( "PennDOT "). Facts: You request an advisory from the Commission regarding the post - empryment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. In October 2016, you resigned from yyour employment as a Senior Civil Engineer Supervisor -- Transportation with PennDOT in Engineering District 11 -0, in which capacity you served as the District Railroad Grade Crossing Engineer in the Design Services, Utilities Unit. You have submitted a copy of an organizational chart for Engineering District 11 -0, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Senior Civil Engineer Supervisor -- Transportation (job code 1114T) has been obtained and is also incorporated herein by reference. In June 2017, you accepted a position with a design /consulting firm named "CDR Maguire" (the "Firm "). The Firm is under contract with PennDOT to provide Construction Management/Construction Inspection ( "CM /CI ") services on several roadway projects. In your position with the Firm, you review progress or project schedules ( "Schedules ") on PennDOT- related projects in order to ensure that the Schedule information provided by the contractor is compliant with the terms and conditions of the contract between PennDOT and the contractor and that the Schedule meets the requirements of the project specifications. At the conclusion of your review of a Schedule, you develop an outline of issues found and corresponding comments and corrective actions required by the contractor to achieve compliance with the contract. You also prepare a draft letter for PennDOT to use to present to the contractor the issues discovered during your review of the Schedule. Romano, 17 -578 e�6er 1, 2017 Page 2 You state that in your position with the Firm, you have no direct contact with any member of PennDOT staff associated with the projects for which you are reviewing Schedules. You state that the information that you generate through your review is disseminated to another Firm team member who assembles your data and formally presents it to the appropriate PennDOT representative. You further state that all applicable CMICI contracts were obtained prior to your employment with the Firm and that at no time has your current position with the Firm been used to influence PennDOT in obtaining work. Based upon the above submitted facts, you pose the following questions: (1) Whether, following the expiration of the one -year period of applicability of the post - employment restrictions of Section 1103(g) of the Ethics Act, you would be eligible to establish direct dialogue with the PennDOT representatives assigned to the projects for which you would be reviewing Schedules on behalf of PennDOT; (2) Whether there is a process that you would need to execute in order to affirm your eligibility to represent the interests of PennDOT as a consultant; and (3) Whether it would be permissible to bill PennDOT for reimbursement of the time that you spent performing reviews of PennDOT- related Schedules during our employment with the Firm from June 2017 through October 11, 2017 the date of your advisory request letter). Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of the 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 discllosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In the former capacity as a Senior Civil Engineer Supervisor — Transportation for PennDOT, you would be considered a "public employee" sub ect to the Ethics Act and the Regulations of the State Ethics Commission. See, Pa.CT § 1102; 51 Pa. Code § 11.1; Clark, Advice 16 -549; McCombie, Advice 15 -520; DeLacio, Advice 15 -516. This conclusion is based upon the job classification specifications�w 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 became a "former public employee" subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act provides as follows: Romano, 17 -578 e5 cemB r 1, 2017 Page 3 § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a eson, with promised or actual compensation, on any matter before the governmental bod with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former public employees, apply for one year following termination of service in the public position. Based upon the submitted fact that you terminated service with PennDOT in October 2016, which was more than one year ago, you are advised that the restrictions of Section 1103(g) of the Ethics Act have ceased to apply to you. Cf., Confidential Advice, 17 -522; Confidential Advice, 16 -507; Confidential Advice, 10 -549; ermanio, Advice 07 -599. Your specific questions shall now be addressed. In response to your first and second questions, you are advised as follows. Because you are no longer subject to the restrictions of Section 1103(8) of the Ethics Act, you would not be prohibited from: (1) establishing direct dialogue with the PennDOT representatives assiggned to the protects for which you would be reviewing Schedules on behalf of PennDOT, (2) representing the interests of PennDOT as a consultant; or (3) engaging in other activity(ies) that would constitute representation of a "person "— includding but not limited to the Firm or yourself as a consultant— before PennDOT. In response to your third question, you are advised that the appearance of your name on bills submitted to PennDOT after the expiration of the one -year period of applicability of Section 1103(8) would not cause you to transgress Section 1103(8), even if such bills would include charges for work that you performed during the time period from June 2017 through October 2017. Lastly, the propriety of the proposed conduct has only been addressed under Section 1103(g) of the Ethics Act. Conclusion: In the former capacity as a Senior Civil Engineer Supervisor – Transportation for the Pennsylvania Department of Transportation ( "PennDOT "), you would be considered a "public em to re, " subject to the Public Official and Emplo ee Ethics Act "Ethics Act" , 65 Pa.Cg. 01 et seq , and the Re ulations of the Sate Ethics Commission, 51 Pa. Code § 1 et se g. Upon termination of your employment with PennDOT, you became a former public employee. The restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former public employees, a ply for one year following termination of service in the public position. Based upon the submitted fact that you terminated service with PennDOT in October 2016, the restrictions of Section 1103(g) of the Ethics Act have ceased to apply to you. 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. Romano, 17 -578 ecemEer 1, 2017 Page 4 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 ot 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. Sincer y, WRob M. Hittie Chief Counsel