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HomeMy WebLinkAbout20-550 Michael 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 December 14, 2020 To the Requester: Karen L. Michael, P.E. 20-550 Dear Karen L. Michael: This responds to your letter postmarked November 2, 2020, received November 6, 2020, and your email received December 8, 2020, by which you requested an advisory from Issue: Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual who retired from employment with the Pennsylvania Department of Transportation Transportation Commission, where the individual would not accept any compensation in relation to such appointment until after January 24, 2021. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You are a licensed Professional Engineer in Pennsylvania. On January 24, 2020, you retired from your employment with PennDOT. During your career with PennDOT, you worked with the State Transportation Commission. You are now interested in being appointed to the State Transportation Commission by Governor Tom Wolf. You state that you do not anticipate that you would be appointed to the State Transportation Commission prior to January 24, 2021. You further state that if you would be appointed to the State Transportation Commission prior to January 24, 2021, you would not accept compensation in relation to such appointment until after January 24, 2021. The question presented by your advisory request is whether the Ethics Act would impose prohibitions or restrictions upon you with regard to being appointed to the State Transportation Commission. 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 Michael, 20-550 December 14, 2020 Page 2 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. Although the submitted facts do not identify the particular position you held with PennDOT at the time you retired from PennDOT, this Advice assumes--without deciding- -that in the aforesaid position, you would be considered a the Ethics Act and the Regulations of the State Ethics Commission (see, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1), such that upon termination of your employment with PennDOT, you beca Ethics Act. Section 1103(g) of the Ethics Act provides: § 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). Section 1103(g) of the Ethics Act does not apply to restrict a former public employee when the representation does not involve promised or actual compensation or when payment to the former public employee is limited to reimbursement only for reasonable and necessary actual expenses. Cf., Confidential Opinion, 07-012; Moore, Opinion 04-004; Confidential Opinion, 97-012; Antico, Order 1061. Based upon the above, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from being appointed to the State Transportation Commission where you would not accept any compensation for serving on/performing duties for the State Transportation Commission for the time period prior to January 25, 2021. This Advice has addressed the applicability of Section 1103(g) of the Ethics Act only. 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 Conclusion: Based upon the submitted facts that: (1) you are a licensed Professional Engineer in Pennsylvania; (2) on January 24, 2020, you retired from your employment with the Pennsylvania Department of T during your career with PennDOT, you worked with the State Transportation Commission; (4) you are now interested in being appointed to the State Transportation Commission by Governor Tom Wolf; (5) you do not anticipate that you would be appointed to the State Transportation Commission prior to January 24, 2021; and (6) if you would be appointed to the State Transportation Commission prior to January 24, 2021, you would not accept compensation in relation to such appointment until after January 24, 2021, you are advised as follows. This Advice assumes, without deciding, that in the position you held with PennDOT at the time that you retired from PennDOT, et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., such that upon termination of your employment with PennDOT, you beca , 65 Pa.C.S. § 1103(g). Section 1103(g) of the Ethics Act would not prohibit you from being appointed to the State Michael, 20-550 December 14, 2020 Page 3 Transportation Commission where you would not accept any compensation for serving on/performing duties for the State Transportation Commission for the time period prior to January 25, 2021. 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