HomeMy WebLinkAbout21-525 StaudtPHONE: 717-783-1610
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To the Requester:
Dylan Staudt
Dear Mr. Staudt:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
May 6, 2021
21-525
This responds to your letter received April 19, 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
seq., would impose restrictions upon you, as a former Engineering, Scientific, and
Technical Intern with the Pennsylvania Department of Transportation (PennDOT), with
regard to performing work for your new employer, an engineering firm?
Brief Answer: YES. 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 your new employer —before PennDOT.
Facts:
You request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows:
Staudt, 21-525
May 6, 2021
Page 2
Over the four previous summers, you worked part-time as an Engineering, Scientific, and
Technical Intern with PennDOT in District 8-0. Your last period of employment as an
Engineering, Scientific, and Technical Intern with PennDOT ended in August 2020.
During your internships with PennDOT, you worked under the direction of others to gain
work experience in the field of civil engineering. You were not in charge of any projects or
involved in accepting any projects.
Your new employer is an engineering firm known as "Dewberry" (the Firm). You will be
employed as an Entry Level Bridge Engineer with the Firm.
You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions
upon you with regard to performing work for the Firm.
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.
In your former capacity as an Engineering, Scientific, and Technical Intern for PennDOT,
you were a "public employee" subject to the Ethics Act and the Regulations of the State Ethics
Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Cottle, Advice 20-553; Greiss, Advice
20-525; Barley, Advice 19-504; Patel, Advice 19-501.
Consequently, upon termination of your employment with PennDOT, you became 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).
Staudt, 21-525
May 6, 2021
Page 3
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 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
aM 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.
Staudt, 21-525
May 6, 2021
Page 4
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 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; Shart�, Opinion 90-009-R.
The governmental body with which you are deemed to have been associated upon
termination of your employment with PennDOT is PennDOT in its entirety, including but not
limited to District 8-0. 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" before PennDOT.
You are advised that during the one-year period of applicability of Section 1103(g) of the
Ethics Act, you would be prohibited from performing any job duties for your new employer, the
Firm, that would involve prohibited representation before PennDOT as set forth 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:
In your former capacity as an Engineering, Scientific, and Technical Intern for PennDOT,
you were a "public employee" subject to the Ethics Act and the Regulations of the State Ethics
Commission. Upon termination of your employment with PennDOT, you became a "former public
employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is
PennDOT in its entirety, including but not limited to District 8-0. 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" before PennDOT. The restrictions as to representation
outlined above must be followed. During the one-year period of applicability of Section 1103(g)
of the Ethics Act, you would be prohibited from performing any job duties for your new employer,
the Firm, that would involve prohibited representation before PennDOT as set forth above. Lastly,
the propriety of the proposed conduct has only been addressed under the Ethics Act.
Staudt, 21-525
May 6, 2021
Page 5
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.
RespectfullyaCounse