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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