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