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HomeMy WebLinkAbout18-560-S Ruzzi 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 29, 2020 To the Requester: Louis J. Ruzzi, P.E. 18-560-S Dear Louis J. Ruzzi: This responds to your letter dated November 23, 2020, and your email received December 1, 2020, by which you requested supplemental advice from the Pennsylvania State Ethics Commission s. Issue: Whether the P5 Pa.C.S. § 1101 et seq., would impose restrictions upon employment of a Senior Civil Engineer Manager following termination of employment with the Pennsylvania Department of Transportation (PennDOT). Facts: By letter dated August 13, 2018, you submitted an initial request for an advisory from the Commission regarding the post-employment restrictions of the Ethics Act. At the time of your initial inquiry, you were employed as a Senior Civil Engineer Manager with PennDOT in Engineering District 11-0 (District 11-0), in which capacity you served as the District Bridge Engineer. In your August 13, 2018, advisory request letter, you stated that you were considering retiring from your employment with PennDOT and performing bridge/transportation work for a consultant. In response to your initial advisory request, Ruzzi, Advice 18-560, was issued to you on November 1, 2018. Advice of Counsel 18-560 determined that in your capacity as a Senior Civil Engineer Manager for PennDOT, you would be considered a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission, and that upon termination of your employment with PennDOT, you would become a former public employee subject to the restrictions of Section 1103(g) of the Ethics Act. The Advice determined that 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. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act and stated that 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 Advice further addressed three specific questions that you posed as to Ruzzi, 18-560-S December 29, 2020 Page 2 whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to your post-retirement employment activities. In your November 23, 2020, advisory request letter, you state that on September 18, 2020, you retired from your employment as a Senior Civil Engineer Manager for PennDOT in District 11-0. You state that on October 26, 2020, you began working for a consulting firm known as WSP (the Firm). You state that the Firm is working on a funding scenarios project known as the PennDOT Pathways Program (the PennDOT Program), which is looking at new and different ways to fund transportation projects. You further state that the Firm is working on the PennDOT Program out of s Central Office as a subconsultant to another consulting firm, using a Task Order under an Open-End Agreement. You additionally state that Gannett Fleming was selected as the prime consultant on the aforesaid Open-End Agreement in November 2017 and that the Firm started working on the aforesaid Task Order in 2019. In your November 23, 2020, advisory request letter, you state that although you were involved in asking for funding for bridge projects while you were employed with PennDOT, you were never involved in determining how that funding was generated. You state that new revenue streams are typically determined by the Pennsylvania Legislature based upon options provided by s Central Office. You express your view that the Firms work on the PennDOT Program is not closely related to your previous work with PennDOT, which mainly involved engineering work. You request supplemental advice on the sole question of whether, during the one-year period of applicability of Section 1103(g) of the Ethics Act, you would be permitted to do work on the PennDOT Program for the Firm. In your email received December 1, 2020, you question whether your ability to do work on the PennDOT Program for the Firm would be impacted to the extent that contract(s) for the PennDOT Program would have been awarded prior to your retirement from PennDOT and would not involve District 11-0. 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 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 material facts. This Supplemental Advice incorporates herein by reference the recitation of the Section 1103(g) restrictions set forth within Ruzzi, Advice of Counsel 18-560. In response for your request for supplemental advice, you are advised that during the first year following termination of your employment as a Senior Civil Engineer Manager for PennDOT in District 11-0, Section 1103(g) of the Ethics Act would prohibit you from doing work for the Firm on the PennDOT Programregardless of whether contract(s) for the PennDOT Program would have been awarded prior to your retirement from PennDOT and/or would not involve District 11-0unless you would be able to do so without engaging in prohibited representation before PennDOT as delineated in Ruzzi, Advice of Counsel 18-560. The propriety of the proposed conduct has only been addressed under the Ethics Act. Intentionally not addressed herein is the applicabili Conduct. Ruzzi, 18-560-S December 29, 2020 Page 3 Conclusion: Based upon the submitted facts that: (1) on September 18, 2020, you retired from your employment as a Senior Civil Engineer Manager for the Pennsylvania Department of Transportation () in Engineering District 11-0 (District 11-0); (2) on October 26, 2020, you began working for a consulting firm known as WSP (the Firm); (3) the Firm is working on a funding scenarios project known as the PennDOT Pathways Program (the PennDOT Program), which is looking at new and different ways to fund transportation projects; (4) the Firm is working on the PennDOT Program out of s Central Office as a subconsultant to another consulting firm, using a Task Order under an Open-End Agreement; (5) Gannett Fleming was selected as the prime consultant on the aforesaid Open-End Agreement in November 2017, and the Firm started working on the aforesaid Task Order in 2019; (6) although you were involved in asking for funding for bridge projects while you were employed with PennDOT, you were never involved in determining how that funding was generated; and (7) new revenue streams are typically determined by the Pennsylvania Legislature based upon options provided by s Central Office, you are advised as follows. During the first year following termination of your employment as a Senior Civil Engineer Manager for PennDOT in District 11-0, Section 1103(g) of the Ethics Act would prohibit you from doing work for the Firm on the PennDOT Programregardless of whether contract(s) for the PennDOT Program would have been awarded prior to your retirement from PennDOT and/or would not involve District 11-0unless you would be able to do so without engaging in prohibited representation before PennDOT as delineated in Ruzzi, Advice of Counsel 18-560. 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, Brian D. Jacisin Chief Counsel