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HomeMy WebLinkAbout18-549-CL 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 November 1, 2018 To the Requester: Mr. Matthew V. Miele, P. E. Dear Mr. Miele: FACSIMILE: 717 -787 -0806 WEBSITE: www.ethics.pa.aov 18-549-CL This responds to your letter dated August 21, 2018, by which you requested clarification of Miele, Advice of Counsel 18 -549. Issue: Whether Section 1103(g) of the Public Official and Employee Ethics Act Tics Act ")), 65 Pa.C.S. § 1103(g), would impose prohibitions or restrictions upon an individual who retired from his employment as a District Permit Engineer with the Pennsylvania Department of Transporfation ( "PennDOT ") in Engineenng District 6 -0 RnnDOT istrict 6 -0 ") with regard to the individual's name appearing on Invoices submitted to for work that the individual would perform on pre - existing contracts with PennDOT, where such contracts would not involve the District 6 -0 Permits Unit but may involve projects in District 6 -0 or in PennDOT Districts other than District 6 -0. Facts: By letter dated July 16, 2018, you initially requested an advisory from the Pennsylvania State Ethics Commission { "Commission } regarding the post employment restrictions of Section 1103 {g) of the Ethics Act. In response to your initial advisory request, Miele, Advice 18 -549, was issued to you on August 3, 2018, which Advice is incorporateTherein by reference. By letter dated August 21, 2018, you requested clarification as to whether, pursuant to the Commission's holding in Abrams/Webster, Oppinion 95 -011 (pertaining to invoices), your name could appear on invoices su mitte to PennDOT for work that you would perform on pre - existing contracts with PennDOT, where such contracts would not involve the District 6-0 Permits Unit but may include but not be limited to bridge, roadway, or traffic - related projects in District 6 -0 or an type of projects in PennDOT Districts other than District 6 -0. In particular, you asked whether your name could appear on invoices pertaining to seven specific PennDOT Engineering Agreements (the "Seven Engineering Agreements ") that you identified in your letter by Engineering Agreement number, protect description, and name of project manager. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(l 1) of e Ethics 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 independent investigation of the facts, nor does it speculate as to facts that have not Miele, 18- 549 -CL November 1, 2018 Page 2 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 that Miele, Advice of Counsel 18 -549 is incorporated herein by reference, the quoted provisia sn of the Ethics Act set forth within the Advice shall not be repeated herein. In response to your request for clarification of Advice of Counsel 18 -549, you are advised as follows. As noted in Advice of Counsel 18 -549, Section 1103 {g) of the Ethics Act 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 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. AbramsN ebster, supra. For purposes of applying the Commission's holding in AbramsNVebster, supra, the PennDOT "unit" where you worked would be District 6 -0 in its entiret uring the one -year period of applicability of Section 1103(g) of the Ethics Act, as a general rule, your name could not be listed on invoices submitted to PennDOT. However, if you would perform work on PennDOT contracts that existed before you terminated your employment with PennDOT, and if such contracts would not involve the "unit" of PennDOT where you worked, specifically District 6 -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, AbramslWebster, su qra.f However, the foregoing is limited to the submission of bi i� hours. ection 110 the Ethics Act would still restrict you as to other representation before PennDOT as t forth in Miele, Advice 18 -549, and specifically would prohibit you from permitting your name to appear on other material(s) submitted to PennDOT, including but not limited to invoices that would not fall within the narrow parameters of the Commission's holding in Abrams/Webster, supra. With respect to your specific question regarding invoices pertaining to the Seven En ineering Agreements, based upon the submitted facts, you are advised that Section 11�3(g) of the Ethics Act would prohibit the inclusion of your name on invoice(s) submitted to PennDOT pertaining to any of the Seven Engineering Agreements except to the narrow and limited extent permitted by the Commission's holding in AbramsMlebster, supra. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicabilit of any other statute, code, ordinance, regulation or other code of conduct other than ?he 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 former District Permit Engineer for the Pennsylvania Department of Transportation ( "PennDOT ") in Engineering District 6 -0 ( "District 6 -0'), you are provided with the following clarification as to Miele, Advice 18 -549. For purposes of applying the Commission's holding in Abramsl�V1 ebster, Opinion 95-011, the PennDOT "unit" where you worked would be District 6 -0 in its entiret . During the one -year period of applicability of Section 1103(g) of the Pub�"c Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g), as a general rule, your name could not Miele, 18549 -CL member 1, 2018 Page 3 be listed on invoices submitted to PennDOT. However, if you would perform work on PennDOT contracts that existed before you terminated your employment with PennDOT, and if such contracts wouufit involve the "unit" of PennDOT where you worked, sped T cally District 6 -0, your name could appear on routine invoices submitted to PennDOT as tothose part icular pre- existing contracts if required by the regulations of PennDOT. However, the foregoin g is limited to the submission of billing hours. Section 1103(8) of the Ethics Act would still restrict you as to other representation before PennDOT as set forth in Miele, Advice 18-549, and specifically would prohibit you from permitting your name to appear on other material(s) submitted to PennDOT, including but not limited to invoices that would not fall within the narrow parameters of the Commission's holding in Abrams/Webster, supra. With respect to your specific question regarding invoices pertaining to seven specific PennDOT Engineering Agreements (the "Seven Engineering Agreements ") that you identified in your August 21, 2018, request letter by Engineering Agreement number, project description, and name of project manager, based upon the submitted facts, you are advised that Section 1103(g) of the Ethics Act would prohibit the inclusion of your name on invoice(s) submitted to PennDOT pertaining to any of the Seven Engineering Agreements except to the narrow and limited extent permitted by the Commission's holding in Abrams/Webster, supra, Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(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 actual) received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 73.2(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, r `_�_ 4 M. Robin M. Hittie Chief Counsel