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HomeMy WebLinkAbout20-523 Picca"I ta PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 13, 2020 To the Requester: Mr. Alfred A. Picca, Jr., P.E. 20-523 Dear Mr. Picca: This responds to your letter dated March 30, 2020, received April 7, 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. TS. § 1101 et sec.., would impose restrictions upon employment of an Assistant Highway District Engineer following termination of employment with the Pennsylvania Department of Transportation ("PennDOT"). Facts: You request an advisory from the Commission regarding the post- e pme oyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On January 25, 2020, you retired from your employment as an Assistant Highway District Engineer with PennDOT in Engineering District 5-0, in which capacity you served as an Assistant District Executive for Construction. You have submitted a copy of a position description for the position of Assistant Highway District Engineer, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Assistant Highway District Engineer (job code 11710) has been obtained and is also incorporated herein by reference. You state that in your former Commonwealth position, you directed the construction management and contract administration of Engineering District 5-0's construction program through a staff of construction managers, supervisors, and inspectors. You state that you also participated in the selection process for professional services for construction management and construction inspection service agreements. You state that you intend to seek employment with a professional engineering consulting service firm that performs design and construction management/inspection services for PennDOT, the Pennsylvania Turnpike Commission, municipalities, various agencies, and private clients. Your proposed future work may involve assisting with design and construction management and inspection principles and practices and conducting performance and quality assurance reviews of engineering services provided by your new employer. You state that your proposed future work may also involve administrative and construction oversight responsibilities related to the work performance Picca, 20-523 April 13, 2020 Page 2 and construction progress of a construction contractor that has a contract with a municipality or private client for the completion of work associated with a Highway Occupancy Permit issued by PennDOT. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you 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 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. In the former capacity as an Assistant Highway District Engineer for PennDOT, you would be considered a "public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Staudt, Advice 19-554; Andrews, Advice 19-531; Karr, Advice 16-554; McGee, Advice 16-513. This conclusion 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 anon -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 empplo ment with PennDOT, you became 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." 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 Picca, 20-523 April 13, 2020 Page 3 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. "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 .r 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. 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; ( ) submission of bid or contract proposals which are signed by or contain the name of the former public official/public employee; (4) participating in an matters before the former governmental 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 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. 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. Abrams/Webster, 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 ublic 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 beffore his former governmental body. The former public official/public 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 Picca, 20-523 April 13, 2020 Page 4 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. The governmental body with which you are deemed to have been associated upon termination of your employment with PennDOT is PennDOT in its entirety, including but not limited to Engineering District 5-0. Therefore, for the first year following termination of your employment with PennDOT, Section 1103( i of the Ethics Act would apply and restrict 'representation" of a "person" before PennMT. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with a professional engineering consulting service firm that performs design and construction management/inspection services for PennDOT, the Pennsylvania Turnpike Commission, municipalities, various agencies, and private clients. However, durin the first year following termination of your employment with PennDOT, Section 1103(g}q of the Ethics Act would prohibit you from engaging 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 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 official/public 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: In the former capacity as an Assistant Highway District Engineer for the PennsyTvania Department of Transportation ("PennDOT"), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec.., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sew Upon termination of your employment with PennDOT, you became a "former public employee" subject to Section 1103(�) of the Ethics Act. The former governmental body is PennDOT in its entirety, includding but not limited to Engineering District 5-0. For the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before PennDOT. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with a pro essional engineering consulting service firm that performs design and construction management/inspection services for PennDOT, the Pennsylvania Turnpike Commission, municipalities, various agencies, and private clients. However, durin the first year following termination of your employment with PennDOT, Section 1103�g) of the Ethics Act would prohibit you from engaging 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. Picca, 20-523 April 13, 2020 Page 5 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 writing and must be actuaII14 received at the Commission within thirt (30 days of the date o this vice pursuant to 51 Pa. Code j 13.2(yh). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission f717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, 564�n-' Robin M. Hittie Chief Counsel