HomeMy WebLinkAbout18-517 HorwhatPHONE: 717- 783 -1610
TOLL FREE: 1 -800- 932 -0936
ADVICE OF COUNSEL
March 19, 2018
To the Requester:
Mr. Robert D. Horwhat, P.E.
Dear Mr. Horwhat:
FACSIMILE: 717 -787 -0806
WEBSITE: www.ethirs.pa.gov
18 -517
This responds to your letter dated January 16, 2018, and your submission
received January 29, 2018, 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-T-S. § 1101 et seq., would impose restrictions upon employment of a Highway
Administration Program Manager 2 following termination of employment with the
Pennsylvania Department of Transportation ( "PennDOT ").
Facts: You request an advisory from the Commission regarding the post -
emp] yment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
On October 20, 2017, you retired from your employment as a Highway
Administration Program Manager 2 with PennDOT, in which capacity you served as the
Chief Materials Engineer. You have submitted a copy of your official Commonwealth
position description, which document is incorporated herein by reference. A copy of the
mob classification specifications for the position of Highway Administration Program
anager 2 {job code 11223) has been obtained and is also incorporated herein by
reference.
You are currently employed as th e
TRC Engineering, Inc. (the "Firm "). Y
engineering agreements to provide
departments and other owner agencies
concrete and structural steel or aluminum
Director of Structural Materials Inspection for
our duties with the Firm involve working on
quality assurance for state transportation
during the fabrication of precast, prestressed
members.
You seek guidance as to whether the Ethics Act would impose prohibitions or
restrictions upon you during the first year following termination of your employment with
PennDOT. In particular, you ask whether you would be permitted to perform work for
the Pennsylvania Turnpike Commission.
Discussion: It is initially noted that pursuant to Sections 11 07(10) and 1107(11) of
heEthic sect, 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
Horwhat, 18 -517
a cFi T9, 2018
Page 2
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 Highway Administration Pro ram Manager 2 for
PennDOT, you would be considered a public employee" subJ'ect to the Ethics Act and
the Regulations of the State Ethics Commission. See, Pa.C.S. § 1102; 51 Pa. Code §
11.1. This conclusion is 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 became
a "former public employee" subject to Section 11 03(g) the Ethics Act.
While Section 1103() 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 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
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.
"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
Horwhat, 18 -517
7—arch 1 2018
Page 3
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 offici pp f i employee himself,
Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur,
Opinion 95 -00 .
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in awn r 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 govern mental
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 farmer .public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public officiallpublic 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
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 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 but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90-0 arp, pinion 90- 009 -R.
The governmental body with which you are deemed to have been associated
upon termination of your employment with PennDOT is PennDOT in its entirety.
Therefore, for the first year following termination of your employment with PennDOT,
Section 1103( ) of the Ethics Act would apply and restrict "representation" of a "person"
before PennDST.
Horwhat, 18 -517
alCrcFi T9, 2018
Page 4
You are advised that during the first year following termination of your
employment with PennDOT, Section 1103(8) of the Ethics Act would not prohibit you
from performing work for the Pennsylvania Turnpike Commission subject to the
condition that in so doing, you would not engage in prohibited representation before
PennDOT as set forth 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., or confidential information received by being n
the public position, 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
basVppon the u nderstanding that the vote, official action, or judgment of the public
offiblic 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. In the former capacity as a Highway Administration Program
Manager r the Pennsylvania Department of Transportation ( "PennDOT "), you would
be considered a "public employee" 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 s_e_q .Upon termination of your employment with
PennDOT, you became a "former public employee" subject to Section 1103(9 of the
Ethics Act. The former governmental body is PennDOT in its entirety. For the first year
following termination of your employment with PennDOT Section 1'103(8) of the Ethics
Act would apply and restrict "representation" of a "persona' before Penn❑ T. During the
first year following termination of your employment with PennDOT, Section 1103(g) of
the Ethics Act would not prohibit you from performing work for the Pennsylvania
Turnpike Commission subject to the condition that in so doing, you would not engage in
prohibited representation before PennDOT as set forth above. 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 anyy
reason to challenge same, you may appeal the Advice to the fu11
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 thir73.2(h). (30) days of the date of this
Advice pursuant to 51 Pa. Code § The appeal may be
Horwhat, 18 -517
aM—rclii -Tg, 2018
Page 5
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. M Hittie -tk4�
Chief Counsel