HomeMy WebLinkAbout18-572 HorwhatPHONE: 717 - 783 -1610
TOLL FREE: 1- 800 - 932 -0936
ADVICE OF COUNSEL
December 7, 2018
To the Requester:
Robert D. Horwhat, P.E.
Dear Mr. Horwhat:
FACSIMILE: 717 -787 -0806
WEBSITE: www.ethics.pa.gov
18 -572
This responds to your letter dated October 30, 2018, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the post- employment restrictions of Section 1103(i) of the Public
Ufficial and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1103(t), would be
applicable to you as a former Highway Administration Program Manager who served
as a Chief Materials Engineer for the Pennsylvania Department of Transportation
( "PennDOT ").
Facts: As a former Highway Administration Program Manager 2 for PennDOT,
you request an advisory from the Commission as to whether the post - employment
restrictions of Section 1103(i) of the Ethics Act would be applicable to you.
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 overseeing the statewide program for materials testing,
specification and acceptance. 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 Highway
Administration Program Manager 2 (job code 11223) has been obtained and is also
incorporated herein by reference.
You state that in your aforesaid former position with PennDOT, you were not
involved in recruiting companies to come to Pennsylvania or to expand in Pennsylvania
through grants or loans or promises of grants or loans.
You are currently employed as the Director of Structural Materials Inspection for
TRC Engineering Inc.
Based upon the above submitted facts, you seek guidance as to whether the
post - employment restrictions of Section 1103(i) of the Ethics Act would be applicable to
you. (It is administratively noted that you previously obtained an Advice, Horwhat,
Advice 18 -517, issued March 19, 2018, regarding the post - employment restrictions of
Section 1103(g) of the Ethics Act.)
Horwhat, 18 -572
ecem er 7, 2018
Page 2
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) 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
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.
Section 1103(i) of the Ethics Act provides:
§ 1103. Restricted activities
(i) Former executive -level employee. - -No former
executive -level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this Commonwealth, provided that the
above prohibition shall be invoked onlv when the recruitment
or a promise or a arant or loan of money rrom the
maucea to expana
65 Pa.C.S. § 1103(i) (Emphasis added).
The Ethics Act defines the term "executive -level State employee" as follows:
§ 1102. Definitions
"Executive -level State employee." The Governor,
Lieutenant Governor, cabinet members, deputy secretaries,
the Governor's office staff, any State employee with
discretionary powers which may affect the outcome of a
State agency's decision in relation to a private corporation or
business or any employee who by virtue of his job function
could influence the outcome of such a decision.
65 Pa.C.S. § 1102.
Per the submitted facts, in your aforesaid former position with PennDOT, you
were not involved in recruiting/inducing companies to come to Pennsylvania or to
expand in Pennsylvania through grants or loans or promises of grants or loans.
Therefore, as a practical matter, the restrictions of Section 1103(i) of the Ethics Act
would not apply to restrict you.
The advisory request 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.
Horwhat, 18 -572
e er 7, 2018
Page 3
Conclusion: Based upon the submitted facts that in your former capacity as a
Highway ministration Program Manager 2 who served as a Chief Materials Engineer
for the Pennsylvania Department of Transportation you were not involved in
recruiting /inducing companies to come to Pennsylvania or to expand in Pennsylvania
through grants or loans or promises of grants or loans, you are advised that as a
practical matter, the restrictions of Section 1103(1) of the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(i), would not apply to restrict you. Lastly,
the advisory request 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 actual)
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § f3.2(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,
Robin M. H its /tiie�
Chief Counsel