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HomeMy WebLinkAbout18-554 ShirockPHONE: 717 -783 -1610 TOLL FREE! 1- 800- 932 -0936 ADVICE OF COUNSEL September 26, 2018 To the Requester: Mr, Jeremiah Michael Shirock Dear Mr. Shirock: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.aa.aov 18 -554 This responds to your letter dated August 8, 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 -a.. ,S. § 1101 et sec., 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 - empl oyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as a Senior Civil Engineer Supervisor — Transportation with PennDOT in Engineering District 5 -0 ( "District 5 -0 "), in which capacity you serve as the District Permit Manager for Berks, Lehigh, and Schuylkill Counties. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Senior Civil Engineer Supervisor — Transportation (lob code 1114T) has been obtained and is also incorporated herein by reference. In your current position with PennDOT, you correspond with various parties, including developers and representatives of utility companies, to provide guidance and direction on how to apply for Highway Occupancy Permits. You receive and review Highway/ Occupancy Permit app ications. You distribute Highway Occupancy Permit applications to internal staff and engineering staff of a consultant company for review. YYou were part of the selection team that selected the consultant company that currently provides PennDOT with Highway Occupancy Permit review services and support. You issue Highway Occupancy Permits to developers for accesses and roadwayy improvements and to utility companies for utility work within the State highway right -of- way. You provide input, assistance, and guidance to engineers and contractors during the construction of projects for which Highway Occupancy Permits were obtained, and you assign internal staff and consultant staff to inspect those projects. You were not part of the selection team that selected the consultant company that currently provides Shirock, 18 -554 September 26, 2018 Page 2 PennDOT with inspection services during the construction of projects for which Highway Occupancy Permits were issued. You intend to pursue employment with an engineering consulting company that does business with and provides services for PennDOT, the Pennsylvania Turnpike Commission ( "Turnpike Commission "), and other state, federal, and local agencies. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions on your activities with a new employer following termination of your employment with PennDOT. In particular, you pose the following questions: (1) Whether you would be permitted to represent your new emplo er in meetings before PennDOT's Central Office or any PennDOT District including District 5 -0), the Turnpike Commission, or any other state, ederal, or local agency under existing or future contracts held by your new employer; (2) Whether your name could appear on any invoice (s) for your new employer on existing or future agreements with PennDO 's Central Office or any PennDOT District including District 5 -0), the Turnpike Commission, or any other state, federa , or local agency; (3) Whether you would be permitted to assist in the preparation of any documents or designs for your new employer on existing or future agreements with PennDOT's Central Office or any PennDOT District including District 5 -0), the Turnpike Commission, or any other state, ederal, or local agency; (4) Whether you would be permitted to assist in the preparation of any proposals for your new employer on advertisements for proposals with PennDOT's Central Office or any PennDOT District including District 5 -0), the Turnpike Commission, or any other state, federal, or local agency; (5) Whether you would be permitted to include your name on an proposals for your new employer on advertisements for proposals with PennDOT's Central Office or any PennDOT District (including District 5 -0), the Turnpike Commission, or any other state, federal, or local agency; (6) Whether you would be permitted to seek information — especially if that information is available to the eneral public —from PennDOT's Central Office or any PennDOT District Ciincluding District 5 -0) in an effort to assist in the preparation of designs, proposals, or other deliverables to PennDOT, the Turnpike Commission, or any other state, federal, or local agency; (7) Whether, in your role with your new employer, you would be permitted to work under the direction of a PennDOT employee as a consultant in PennDOT's Central Office or any PennDOT District (including District 5-0), in which capacity you would perform the same duties as a PennDOT employee and have your name appear on invoice(s) as a consultant; and (8) Whether, in your role with your new employer, you would be permitted to work under an existing or new contract and perform Highway Occupancy Permit review services in PennDOT's Central Office or any PennDOT District (including District 5 -0) and have your name appear on invoice(s) as a consultant. Shirock, 18 -554 September 26, 2018 Page 3 Discussion: It is initially noted that pursuant to Sections 1107(10) and '1107(11) of to Ethics pct, 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 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. §§ 11070 0 , (11). An advisory only affords a defense to the extent the requester has truthfully disclosed 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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment. " The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public officiallpublic employee is prohibited from using the authority of public officelemployment or confidential information received by holding such a public position for the private pecuniary benefit Shirock, 18 -554 September 26, 2018 Page 4 of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. 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 anything of monetary value and no public officiallpublic employee shall solicit or accept anything of monetary value based uppon the understanding that the vote, official action, or judgment of the public ofFiciallpublic 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 questions presented. As a Senior Civil Engineer Supervisor — Transportation 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. Coda § 11.1; Romano, Advice 17 -578; Clark, Advice -549; McCombie, Advice 15 -520. T is conc us-I ions based upon the poson description and j t e �o 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 Section 1103(8) 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 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 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. Shirock, 18 -554 September 26, 2018 Page 5 "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 pT%u is employee himself, Confidential �Opinion, 93 -005, as well as a new governmental employer. Ledebur, pmt' ion 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 o 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. Sha , 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 byy the regulations of the agency to which the billing is being submitted. AbramsNV%ster, 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 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 11030 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 Shirock, 18 -554 September 26, 2018 Page 6 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 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 District 5 -0. Therefore, for the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before PennMO Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to our first question, you are advised that during the first year following termination of your PennDOT employment, Section 1103(g) of the Ethics Act would prohibit you from representing your new employer in meetings before any unit of PennDOT, including but not limited to District 5 -0, other Districts), and the Central Office --- regardless of whether such activity(ies) would occur under existing or future contracts Field by your new employer —as such activity(ies) would necessarily involve prohibited representation of your new employer before your former governmental body. Section 1103(g) would not prohibit you from representing your new employer in meetings before the Turnpike Commission or any other state, federal, or local agency provided that such activity(ies) would not involve prohibited representation before PennDOT as delineated above. With regard to your second question, you are advised as follows. Generally, during the one -year period of applicability of Section 1103(g), your name could not appear on invoices submitted to PennDOT by your new employer. However, if you would perform work for your new employer on PennDOT contracts that existed before you terminated your employment with PennDOT, and if such contracts wouTd not involve the "unit" of PennOOT where you formerly worked, specifically District 5--0, your name could appear on routine invoices submitted to PennDOT as to those particular pre - existing contracts if required by the regulations of PennDOT. See, AbramslVllebster, supra. However, the foregoin is limited to the submission of billing hours. Section 1103 g) of the Ethics Act would still prohibit you from enggaging in conduct failing within the ambit of prohibited representation before PennDO1. as set forth above. Section 1103(g) would not prohibit your name from appearing on invoices submitted to the Turnpike Commission or other state, federal, or local agencies by your new employer. However, to the extent that the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT as to such invoices, such as, for example, through the prohibited inclusion of your name on invoice(s) that you know or reasonably expect will be submitted to PennDOT. In response to your third, fourth and fifth questions, you are advised that Section 1103(g) of the Ethics Act would prohibit you from: (1) assisting in the preparation of documents or designs for your new employer on existing or future agreements with PennDOT's Central Office or any PennDOT District (including District 5 -0), the Turnpike Commission, or any other state, federal, or local agency; or (2) assisting in the preparation of any proposals for your new employer on advertisements for proposals with any such aforesaid entities, unless you would be able to do so without engaging in prohibited representation before ennDOT. You are further advised that Section 1103(g) of the Ethics Act would prohibit you from including your name on any proposal(s) for your new employer on advertisements for proposals with any unit of PennDOT, including but not limited to District 5 -0, other District(s), and the Central Office, as such activity(ies) would necessarily involve Shirock, 18 -554 September 26, 2018 Page 7 prohibited representation of your new employer before your former governmental body. Section 1103(g) would not prohibit you from including your name on proposal(s) for your new employer on advertisements for proposals with the Turnpike Commission or other state, federal, or local agencies. However, where the Turnpike Commission or such other agency(ies) would have involvement with PennDOT, you would need to exercise caution to ensure that you would not engage in prohibited representation before PennDOT. Turning to your sixth question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from making general informational inquiries to PennDOT's Central Office or any PennDOT District, including District 5 -0, provided that: 1) the information you would request would be available to the general public; and (2) such communications would not include prohibited representation as delineated above. Section 1103(8) of the Ethics Act would not prohibit you from making general informational inquiries to the Turnpike Commission or other state, federal, or local agencies. As to your seventh and eighth questions, you are advised that Section 1103(8) of the Ethics Act would prohibit you from: (1) working under the direction of a PennDOT employee as a consultant in PennDOT's Central Office or any PennDOT District, including District 5 -0 (regardless of the nature of the duties performed and having your name appear an invoices as a consultant; or (2) performing Highway Occupancy Permit review services in PennDOT's Central Office or any PennDOT District, including District 5-0 (regardless of whether such work would be under an existing or new contract) and having your name appear on invoices as a consultant, as such activity(ies) would necessarily involve prohibited representation before your former governmental body. With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are generally advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your prospectively entering into a business/employment relationship with an entity subject.to the conditions that you: (1) did not use the authority of your public position in matter(s) pertaining to such entity when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with such entity or would otherwise receive a private pecuniary benefit relating to such entity; and (2) did not otherwise use the authority of your public position or confidential information received as a result of being in your public position in furtherance of securing a business/employment arrangement with such entity or other private pecuniary benefit relating to such entity. Cf., Desmond, Opinion 08 -004. 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 Senior Civil Engineer Supervisor — Transportation for the ennsy vania 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 § 1 11A et sew. Upon termination of your employment with PennDOT, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be PennDOT in its entirety, including but not limited to Engineering District 5 -0. 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 PennDOT. The restrictions as to representation outlined above must be followed. Shirock, 18 -554 September 26, 2018 Page 8 With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are generally advised that the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of your prospectively entering into a business/employment relationship with an entity subject to the conditions that you: (1) did not use the authority of your public position in matter(s) pertaining to such entity when you had an actual or reasonable expectation that you would enter into a business/employment arrangement with such entity or would otherwise receive a private pecuniary benefit relating to such entity; and (2) did not otherwise use the authority of your public position or confidential information received as a result of being in your public position in furtherance of securing a business/employment arrangement with such entity or other private pecuniary benefit relating to such entity. 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 writingg and must be actuall received at the Commission within thirty (30) days of the date 37 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. Sincerely, P�inM. HOttie Chief Counsel