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HomeMy WebLinkAbout21-533 WouterszPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www, ethics, pa,goy 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 June 23, 2021 To the Requester: John C. Woutersz Dear Mr. Woutersz: MIN191 This responds to your letter received May 25, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issue presented below: Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. C . S. § 1101 et M., would impose restrictions upon you with regard to seeking employment as a "Tradesman" with a pre -qualified business partner (contractor) who does business with the Commonwealth, following termination of your employment as a Senior Civil Engineer Supervisor — Transportation with the Pennsylvania Department of Transportation ("PeiinDOT")? BriefAnswer: YES. Although Section 1103(g) of the Ethics Act would not prohibit you from accepting employment; 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" before PennDOT. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. On April 16, 2021, following 36 years of employment, you retired from PennDOT, District 6-0, as a. Senior Civil Engineer Supervisor - Transportation. You have submitted a copy of your official Commonwealth Position Description, and organizational chant which is incorporated herein by reference. A copy of the job classification specifications for the position of Senior Civil woutersz, 2E-533 June 23, 2021 Page 2 Engineer Supervisor (job code 1I13T) has been obtained and is also incorporated herein by reference. You state that you are seeking employment with a private bridge contractor that does business with the Commonwealth of Pennsylvania as a pre -qualified business partner. You have further provided that your role and job duties for your new employer will include the following possible pay classifications: Laborer, Carpenter, Operator. You submit that you will be a "Tradesman" and not hold a supervisory or managerial position. You conclude in stating that as an employee of PennDOT, you have never been assigned to oversee this particular contractor with whom you are seeking employment, nor have you had any involvement with the bidding, estimation, or procurement of the bridge project which you may become part of Discussion• It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(l0), (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 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 1 I03(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 Woutersz, 21-533 dune 23, 2021 Page 3 (g) Former official or employee. --No former public official or public employee shall represent a ep rson, 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 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 Off, 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 4�jy 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. Po o vich, 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 governrrlental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the Woutersz, 21-533 June 23, 2021 Page 4 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. Ste, 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 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; SiMW, 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 6-0. 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 before PennDOT. To the extent that you will be performing labor and/or otherwise working as an employee for the private contractor, you may do so provided you are not engaging in prohibited representation before PennDOT as set forth above. It is believed that this may be accomplished without transgressing section 1103(g) to the extent that you do not engage in any appearance before your former governmental body. Even while serving in a labor position, you must refrain from any contact with PennDOT officials. As delineated above, a former employee may assist in the preparation of documents to be submitted to his former governmental entity, however his identity must not be divulged. It is believed that you may work in a labor capacity on a PennDOT bridge project; however, your identity as an employee must be restricted as detailed above. As is noted, your name and/or identity contained within routine billings/invoices does not transgress Section 1103(g). Woutersz, 21-533 June 23, 2021 Page 5 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 former Senior Civil Engineer Supervisor — Transportation for ("PennDOT"), you are a "former public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. The former governmental body would be PennDOT in its entirety, including but not limited to District 6-0. 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 —before PennDOT. The restrictions as to representation outlined above must be followed. 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. Sincerel , Brian D. Ja isi Chief Counse