HomeMy WebLinkAbout20-509 EricsonPHONE: 717-783-1610
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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
February 28, 2020
To the Requester:
Mr. Donald R. Ericson
Dear Mr. Ericson:
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
20-509
This responds to your letter dated January 12, 2020, and your submission
received January 22, 2020, 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
7a C-S. § 1101 et seq., would. impose restrictions upon employment of a Civil Engineer
— Bridges following termination of employment with the Pennsylvania Department of
Transportation ("PennDOT").
Facts: You request an advisory from the Commission regarding the post-
empi yment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
You are currently employed as a Civil Engineer — Bridges with PennDOT in
District 11-0. 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 Civil Engineer — Bridges (job code 1112B)
has been obtained and is also incorporated herein by reference.
In your current position with PennDOT, you perform bridge inspections in District
11-0. Your duties have included performing field inspections of state bridges and other
structures and cursory inspections of local ridges, including railroad bridges over state
roads.
You are considering retiring from your employment with PennDOT and working
as an engineer in the private sector. In particular, you are considering accepting a
position with an engineering company (the "Engineering Company") that would involve
working as a field construction inspector on a county bridge project. You state that a
county engineering project might be overseen by the federal government or the
Commonwealth as a result of receiving federal or Commonwealth funds.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you with regard to performing
engineering work following termination of your employment with PennDOT. In
Ericson, 20-509
Fury 28, 2020
Page 2
particular, you ask whether the Ethics Act would impose restrictions upon you with
regard to accepting employment with the Engineering Company.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 P&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.
As a Civil Engineer -- Bridges for PennDOT, you would be considered a "public
employee" sub1tect to the Ethics Act and the Regulations of the State Ethics
Commission. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1; Plummer, Advice 18-532;
Sinick, Advice �595; Ikwut-Ukwa, Advice 07-508. This con- us►on is based upon the
position description and the job 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(g) does not prohibit a former public official/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
governmental body 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."
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.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
Ericson, 20-509
r_uary 28, 2020
Page 3
"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 officiaVpub ici'�employee himself,
Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur,
pinion 95-00 .
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in awn activity. Examples of prohibited representation include: 1) personal
appearances before the former governmental body or bodies; (2) attempts to 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 ggovernmental 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
33(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. 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. AbramsMebster,
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 1103(g) 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 officiallpublic 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
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.
Ericson, 20-509
Fe-Fr—Liary 28, 2020
Page 4
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 11-0. Therefore, 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 PennD&
You are advised that Section 1103(g) of the Ethics Act would not prohibit you
from accepting employment with the Engineering Company. However, durin the first
year following termination of your employment with PennDOT, Section 1103? ) of the
Ethics Act would prohibit you from engaging in any activity(ies) that would involve
prohibited representation before PennDOT as delineated 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 1103(a) of
the Ethics Act. Further, you are advised that 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
and no public official/public employee shall solicit or accept anything of monetary value
based upon 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 question presented.
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 Civil Engineer — Bridges for the Pennsylvania Department of
ranspo ation ("PennDOT"), you would be considered a "public empplo ee' subject to
the Public Official and Employee Ethics Act ("Ethics Act")), 65 Pa.( 1101 et sew ,
and the Regulations of the State Ethics Commission, 51 Pa. Code § 11. 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 District 11-0. For the first
year following termination of your employment with PennDOT, Section 1103(gg) of the
Ethics Act would apply and restrict "representation" of a "person" before PennDOT. The
restrictions as to representation outlined above must be followed. 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.
Ericson, 20-509
Fury 28, 2020
Page 5
Any such appeal must be in writingg and must be actuall
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 93.2(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. Hittie/j
Chief Counsel