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HomeMy WebLinkAbout18-549 MielePHONE: 717 -783 -1610 TOLL FREE: 1 -800 -932 -0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL August 3, 2018 To the Requester: Mr. Matthew V. Miele, P, E. Dear Mr. Miele; FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.00y 18 --549 This responds to your letter dated July 16, 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 7-a-T'S. § 1101 et seq., would impose restrictions upon employment of a District Permit Engineer following termination of employment with the Pennsylvania Department of Transportation ( "PennDOT'). Facts: You request an advisory from the Commission regarding the post - em ap yment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On June 15, 2018, you retired from your employment as a District Permit Engineer with PennDOT in Engineering District 6 -0. You have a new employer (the "New Employer "), and you reside in Florida as a result of your employment. The New Employer has Commonwealth- funded design projects (the "Design Projects ") that were secured (i.e., for which notice to proceed was received prior to the date that you retired from your employment with PennDOT. The Design Projects include both Intelligent Transportation Systems (ITS) and work regarding highway safety. You would like to perform work for the New Employer on the Design Projects. The work would be independent of the process pertaining to Highway Occupancy Permits, and it is not anticipated that the work would be for private developers or utility companies seeking to obtain Highway Occupancy Permits. In performing such work, you would not personally visit the Engineering District 6 -0 office, and your role would be advisory. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing work for the New Employer on Design Projects that were secured prior to your retirement from PennDOT. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Et5ics 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 engage in an Miele, 18 -549 TO—gust 3, 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. Preliminarily, it is noted that the submitted facts do not include an official Commonwealth position description for your former position as a District Permit Engineer for PennDOT. This Advice assumes, without deciding, that in your former capacity as a District Permit Engineer 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. Consequently, upon termination of your emplo meat with PennDOT, you became a "former public employee" subject to Section 1103 {g�of 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 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 person, with promised or actual compensation, on any matter before the governmental body 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 whack 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. Miele, 18 -549 Xu­gust 3, 2018 Page 3 The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public officia /�b it 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 an activity. Examples of prohibited representation include: (1) personal a pearances 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. Popov_ich, 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 i the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shama ,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. AbramsMebster, 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 activit 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 re and 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 em loyee had influence or control but extends to the entire body. See, Le islative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; harp, Opinion 90- 009 -R. The governmental body with which you are deemed to have been associated upon termination of your empployment with PennDOT is PennDOT in its entirety, including but not limited to En sneering District 6 -0. 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 Pennb& You are advised that during the first year following termination of your employment with PennDOT, Section 1103(8) of the Ethics Act would prohibit you from performing work for the New Employer on Design Projects that were secured prior to Miele, 18-549 ugust 3, 2018 Page 4 your retirement from PennDOT —or even after your retirement from PennDOT— 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(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 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 judgment of the public officialipublic 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. This Advice assumes, without deciding, that in your former capacity as a DistrFct Permit Engineer for 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. § 110, et sec.., and the Regulations of the State Ethics commission, 51 Pa. Code § 11.1 et seg. Upon termination of our employment with PennDOT, you became a " ormer public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety, including but not limited to Enggineeringg District 6-0. For the first year following termination of your employment with PennDOT, Section 11 03(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. 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 d 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 Miele, 18 -549 ugust 3, 2018 Page 5 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal, Sincerely, T Robin M. Hittie Chief Counsel