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Home My WebLink About21-509 PenrosePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Timothy Penrose Dear Mr. Penrose: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 24, 2021 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.Pa.gov 21-509 This responds to your letter dated January 27, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec., would impose restrictions upon you with regard to performing work for a consultant engineering firm following termination of your employment as a Senior Civil Engineer Supervisor — Transportation with the Pennsylvania Department of Transportation ("PennDOT")? Brief Answer. YES. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with a consultant engineering firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve "representation" of a "person" —including but not limited to a new employer, such as a consultant engineering firm —before PennDOT. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Senior Civil Engineer Supervisor — Transportation with PennDOT in District 5-0, in which capacity you serve as a Construction Project Penrose, 21-509 ray 24, 2021 Page 2 Manager. You have submitted a copy of your official Commonwealth Position Description, which is incorporated herein by reference. A copy of the job classification specifications for the position of Senior Civil Engineer Supervisor — Transportation (job code 1114T) has been obtained and is also incorporated herein by reference. You state that for most of your career with PennDOT, you have run PennDOT construction projects. You have not been involved in the consultant engineering firm selection process, but you have supervised consultant engineering firm employees. You have not had dealings directly with the Pennsylvania Turnpike Commission, and you have not performed duties on municipal projects with PennDOT oversight, such as Federal Aid Municipal projects. You plan to retire from PennDOT in March 2021, and you hope to gain employment with a consultant engineering firm. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment with PennDOT. In particular, you pose the following questions: 1). Whether you would be permitted to perform work for a consultant engineering firm on projects for the Pennsylvania Turnpike Commission; 2). Whether you would be permitted to perform work for a consultant engineering firm on municipal projects with PennDOT oversight, such as Federal Aid Municipal projects; and 3). Whether you would be permitted to perform work for a consultant engineering firm on PennDOT projects in PennDOT Districts other than District 5-0. 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 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. As a Senior Civil Engineer Supervisor — Transportation for PennDOT, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1; Feigles-Kaar, Advice 19-551; McCabe, Advice 19-544. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate Penrose, 21-509 ray 24, 2021 Page 3 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 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 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 Penrose, 21-509 ray 24, 2021 Page 4 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. However, the "governmental body with which a public official/public employee is or has been associated" is not limited to the particular subdivision of the agency or other Penrose, 21-509 ray 24, 2021 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 District 5-0. Therefore, 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" —including but not limited to a new employer, such as a consultant engineering firm —before PennDOT. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with a consultant 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 that would involve prohibited representation before PennDOT as delineated above. In response to your first question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from performing work for a consultant engineering firm on projects for the Pennsylvania Turnpike Commission subject to the condition that in so doing, you would not engage in prohibited representation before PennDOT as set forth above. In response to your second and third questions, you are advised that Section 1103(g) of the Ethics Act would prohibit you from performing work for a consultant engineering firm on: (1) municipal projects with PennDOT oversight, such as Federal Aid Municipal projects; or (2) PennDOT projects in any PennDOT District —including Districts other than District 6-0, unless you would be able to do so without engaging in prohibited representation before PennDOT as delineated above. 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. Conclusion: As a Senior Civil Engineer Supervisor — Transportation for ("PennDOT"), you are 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 seg. 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 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" — including but not limited to a new employer, such as a consultant engineering firm —before Penrose, 21-509 ray 24, 2021 Page 6 PennDOT. The restrictions as to representation outlined above must be followed. 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. SincerelyaCoun