The URL can be used to link to this page

Home My WebLink About19-544 McCabePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Mr. Patrick J. McCabe Dear Mr. McCabe: This responds which you re nested ("Commission's. STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 September 23, 2019 FACSIMILE: 717-787-0806 WEBSITE: www.ettijcs.12a.ggy WOZ155 to your letters dated August 20, 2019, and August 25, 2019, by an advisory from the Vennsylvania State Ethics Commission Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 ate. § 1101 et se_q., would impose restrictions upon employment of a Senior Civil Engineer Supervisor-- Transportation following termination o� employment with the Pennsylvania Department of Transportation ("PennDOT"). Facts: You request an advisory from the Commission regarding the post- empl yTent 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 4-0. You have submitted a copy of our official Commonwealth position description, which document is incorporated herein y reference. A copy of the job classification specifications for the position of Senior Civil Engineer Supervisor — Transportation (job code 11 14T) has been obtained and is also incorporated herein by reference. You plan to retire from your employment with PennDOT on or about May 23, 2020. You would like to work with Greenman -Pedersen Inc. (the "Firm") following your retirement from PennDOT. Your position with the Firm would be that of Construction Project Mana er, and your job functions during the first year of your employment with the Firm 1?1d include, inter alias (1) supervising and assigning staff with regard to inspecting, calculating quantities—, issuing payment, roping work orders, and e p I developing and maintaining proec]t records; (2) resolving unforeseen project construction issues and assisting esign,staff in plan alterations; () assisting design staff in the preparation of project "as -built' drawings; (4) developing project documents as they relate to construction issues or activities and working to avoid or resolve project claim issues- and (5)taworking with various entities with regard to daily construction project issues. You s te your expectation that at some point during your employment with the Firm, you would manage construction projects for clients which may include municipalities, county governments, PennDOT Engineering Districts 3-0, 4-0, and 5-0, and private clients. McCabe, 19-544 S-e-pTe—m-ber 23, 2019 Page 2 Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your Commonwealth employment. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the 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 en age in an independent investigation of the facts, nor does it speculate as to facts tha 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. As a Senior Civil Engineer Supervisor — Transportation for PennDOT, you would be considered a "public employesb ect to the Ethics Act and the Regulations of the State Ethics Commission. See, 65Pa.C.S. § 1102; 51 Pa. Code § 11.1; Shirock, Advice 18-554; Romano, Advice 17-578; Clark, Advice 16-549. This conclusion is based upon the posit—ion--d6s6ription and the Jodi 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 A& 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(g) does not prohibit a former public off icial/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 aovernmental body with which he has been associated for one year aver ne ieaves inai Doay. 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 submittint% bid or contract proposals which are signed by or contain e 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. McCabe, 19-544 September 23, 2019 Page 3 "Governmental body with which a public official or public employee is or has been associated." The governmental b within State government or a. political Od"h employee is or has subdivision by which the public official or e I 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 offic1aT7p_ubficemployee himself, Confidential Opinion, .93-005, as well as a new governmental employer. Ledebur, Opinion 95-OUT The term "represent" is also broadly defined to prohibit actin on behalf of any person in :an Examples of prohibited representation include: �1) personal , activity. appearances before L former governmental body or bodies; (2) attempts o influence; (3) submission of bid or contract proposals which are signedin any or contain the name of the former public offic al/public employee; (4) participating n any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovi, 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 boav, 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. �Shha ' g Opinion 91-012. However, if such a pre-existing contract does not involve the uni 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. Abrams/VVebster, Opinion 95-011. A former public official/public employee may assist in the preparation of any documents presented to his former governmental gody. 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 governmentabody 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() only restricts the former public official/public employee with re to representation before his former governmental body. The former public official/public Iclallpublic 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 emloyee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolrj, Opinion 90-006; Shar , Opinion 90-009-R. McCabe, 19-544 September 23, 2019 Page 4 The governmental body with which you would be deemed to have been associated upon termination of your emrloyment with PennDOT would be PennDOT in its entirety, including but not limited to Engineering District 4-0. Therefore, for the first year following termination of your employment with i ?h PennDOT, Section 1103( of the rthics Act would apply and restrict "representation" of a "person" before PennD81T. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from engagin in any activity(ies) that would involve prohibited representation before PennDOT as set forth 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 11 03(a) of the thics Act. Further, you are advised that Sections 1 03(b and 11 03(c of the Ethics Act provide in part that no person shall offer or give to a public official/plic employee and no public official/public employee shall solicit or accept anything of monetary value based upon the understandinthat the vote, official action, or judgment of the public official/public employee wouldbe 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; tke 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 Su ervisor — Transportation for the Penns vai—nia Department of Transportation ("PennDOT"), you would be considered a ny lie employee" to the Public Official and ErnTloyee Ethics Act ("Ethics Act"), d5_Pa.C.S. � 1101 et secl., and the Regulations of the ate Ethics Commission, 51 Pa. Code § 11. f et s��.Up—on 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 En�ineerin District 4-0. For the first year following termination of your employment with. PennbOT, Section 1103(g) of the Ethics Act would apply and restrict '`re esentation" of a "person" before PennDOT. The restrictions as to representation out lined ,ned above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with Greenman -Pedersen Inc, However, uring the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act woul prohibit you from enciagin in any activity(ies) that would involve prohibited representation before PennDOT as set forth above. 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. McCabe, 19-544 September 23, 2019 Page 5 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 (2) days of the dati-of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by handdelivery, United States marl, delivery service, or by FAX transmission (717-787-0806 . Failure to file such an appeal at the Commission within thirty (%-) days may result in the dismissal of the appeal. Sincerely, ARobin M. ?Hit?ti2-V Chief Counsel