HomeMy WebLinkAbout20-519 Cippel
ADVICE OF COUNSEL
March 25, 2020
To the Requester:
Mr. Frank V. Cippel, P.E.
20-519
Dear Mr. Cippel:
This responds to your letter and email received February 24, 2020, by which you
requested an advisory from the Pennsylvania State Ethics Commission .
Issue:
Pa.C.S. § 1101 et seq., would impose restrictions upon employment of a Civil Engineer
Manager - Transportation following termination of employment with the Pennsylvania
Department of
Facts: You request an advisory from the Commission regarding the post-
employment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
You are currently employed as a Civil Engineer Manager - Transportation with
PennDOT in Engineering District 11-0, in which capacity you serve as an Assistant District
Traffic Engineer. 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 Manager - Transportation
(job code 1115T) has been obtained and is also incorporated herein by reference.
You will be retiring from your employment with PennDOT on June 12, 2020. You
plan to continue working in the engineering field following your retirement from PennDOT,
and you would like to work for a traffic engineering firm. You state that you have spoken
to a few people who work for traffic engineering firms that currently provide services to
PennDOT. You hope to interview with a few traffic engineering firms prior to June 12,
2020, and your goal is to gain employment that would start in July 2020. You state that
as of February 20, 2020, you had not begun the formal interview process with any traffic
engineering firm or accepted any position.
You seek guidance as to whether the Ethics Act would impose prohibitions,
restrictions, or requirements upon you in relation to seeking an employment position with
a traffic engineering firm. In particular, you ask whether you would be required to provide
the Commission with the name of a traffic engineering firm that would interview you for a
position. You further seek guidance as to whether the Ethics Act would impose
Cippel, 20-519
March 25, 2020
Page 2
prohibitions or restrictions upon you following termination of your employment with
PennDOT.
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics
Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent
that your inquiry relates to conduct that has already occurred, such past conduct may not
be addressed in the context of an advisory opinion. However, to the extent your inquiry
relates to future conduct, your inquiry may and shall be addressed.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest.--No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include an
action having a de minimis economic impact or which affects
to the same degree a class consisting of the general public or
a subclass consisting of an industry, occupation or other
group which includes the public official or public employee, a
member of his immediate family or a business with which he
or a member of his immediate family is associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Cippel, 20-519
March 25, 2020
Page 3
from using the authority of public office/employment or confidential information received
by holding such a public position for the private pecuniary benefit of the public
official/public employee himself, any member of his immediate family, or a business with
which he or a member of his immediate family is associated. The use of authority of office
is not limited merely to voting, but extends to any use of authority of office including, but
not limited to, discussing, conferring with others, and lobbying for a particular result.
Juliante, Order 809.
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 anything of monetary value 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 questions presented.
As a Civil Engineer Manager - Transportation for PennDOT, you would be
Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Fasiczka, Advice 14-
535; Gaines, Advice 13-575. 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 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
§ 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).
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
Cippel, 20-519
March 25, 2020
Page 4
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 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 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 any 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 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 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 official/public
employee is not restricted as to representation before other agencies or entities.
Cippel, 20-519
March 25, 2020
Page 5
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 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 Engineering District 11-0. Therefore, for the first year following
termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would
PennDOT.
You are advised that Section 1103(g) of the Ethics Act would not prohibit you from
accepting employment with a traffic engineering firm. However, during 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 delineated above.
With regard to Section 1103(a) of the Ethics Act, you are generally advised that
the elements of a violation of Section 1103(a) of the Ethics Act would not be established
as a result of your prospectively entering into a business/employment relationship with an
entity (such as a traffic engineering firm) subject to the conditions that you: (1) did not use
the authority of your public position with PennDOT in matter(s) pertaining to the entity
when you had an actual or reasonable expectation that you would enter into a
business/employment arrangement with the entity or would otherwise receive a private
pecuniary benefit relating to the entity; and (2) did not otherwise use the authority of your
public position with PennDOT or confidential information received as a result of being in
your public position with PennDOT in furtherance of securing a business/employment
arrangement with the entity or other private pecuniary benefit relating to the entity. Cf.,
Desmond, Opinion 08-004.
You are further advised that Section 1103(g) of the Ethics Act would not require
you to provide the Commission with the name of a traffic engineering firm that would
interview you for a position.
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
Conclusion: As a Civil Engineer Manager Transportation for the Pennsylvania
Department of , you would be considered a "public
Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code
§ 11.1 et seq. 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
Engineering District 11-0. For the first year following termination of your employment with
be followed.
Section 1103(g) of the Ethics Act would not prohibit you from accepting
employment with a traffic engineering firm. However, during the first year following
termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would
Cippel, 20-519
March 25, 2020
Page 6
prohibit you from engaging in any activity(ies) that would involve prohibited representation
before PennDOT as delineated above.
With regard to Section 1103(a) of the Ethics Act, you are generally advised that
the elements of a violation of Section 1103(a) of the Ethics Act would not be established
as a result of your prospectively entering into a business/employment relationship with an
entity (such as a traffic engineering firm) subject to the conditions that you: (1) did not use
the authority of your public position with PennDOT in matter(s) pertaining to the entity
when you had an actual or reasonable expectation that you would enter into a
business/employment arrangement with the entity or would otherwise receive a private
pecuniary benefit relating to the entity; and (2) did not otherwise use the authority of your
public position with PennDOT or confidential information received as a result of being in
your public position with PennDOT in furtherance of securing a business/employment
arrangement with the entity or other private pecuniary benefit relating to the entity.
Section 1103(g) of the Ethics Act would not require you to provide the
Pennsylvania State Ethics Commission with the name of a traffic engineering firm that
would interview you for a position.
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.
Any such appeal must be in writing and must be actually received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code § 13.2(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
Chief Counsel