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HomeMy WebLinkAbout21-536 Freethy 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 July 9, 2021 To the Requester: 21-536 Dear Mr. Jason Freethy: This responds to your correspondence received June 16, 2021, by which you requested an , seeking guidance as to the general issue presented below: Issue: Whether et seq., would impose restrictions upon you with regard to seeking employment as a Carpenter/Foreman following termination of your employment as a Transportation Construction Inspector for the ? Brief Answer: 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 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 Transportation Construction Inspector for the Pennsylvania Department of Transportation (PennDOT). A copy of your current job description has been provided and is incorporated herein by reference. You are contemplating separating from Commonwealth service and seeking employment in the private sector as a Carpenter/Foreman. Freethy, 21-536 July 9, 2021 Page 2 You submit that in your post-Commonwealth employment you would be considered a working field person, ensuring that projects are being built to the Pennsylvania Department of Transportations standard. You further submit that currently, Federal prevailing wage rates do not include a pay classification of Foreman and as such your certified payroll would read Carpenter. You submit that as a Carpenter and/or Foreman you would not be producing/submitting any documentation for approval to PennDOT. Lastly you assert that any communication, written or otherwise, between PennDOT and your future employer, would take place through a project manager and/or superintendent. 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 Transportation Construction Inspector for PennDOT, you are subject to the Ethics Act and the Regulations of the State Ethics Commission. See, Pa.C.S. § 1102; 51 Pa. Code § 11.1; Warner, Order 545-S; Engstrom, Advice 15-540. 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 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 § 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). Freethy, 21-536 July 9, 2021 Page 3 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 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 ones 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. Freethy, 21-536 July 9, 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 persons 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 entitie 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; 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 any specific District you may have worked (i.e., 6-0, 5-0, etc.) Therefore, for the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics 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) based upon your assertion that as a Carpenter and/or Foreman you would not be producing/submitting any documentation for approval to PennDOT and that any communication, written or otherwise, between PennDOT and your future employer, would take place through a project manager and/or superintendent. Even while serving in a labor position, you must refrain from any contact with PennDOT officials. 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 Transportation Construction Inspector for PennDOT, you are a former public employee 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 the District(s) you may have worked/been assigned. For the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict Freethy, 21-536 July 9, 2021 Page 5 including but not limited to a new employerbefore 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. Sincerely, Brian D. Jacisin Chief Counsel