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HomeMy WebLinkAbout21-538 Slizofski 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 26, 2021 To the Requester: Ms. Allison Slizofski, PE, PTOE, Principal Drive Engineering Corporation 21-538 Dear Ms. Slizofski: This responds to your letter received June 24, 2021, by which you requested an advisory , seeking guidance as to the general issue presented below: Issue: Whether et seq., would impose restrictions upon a former employee of the Pennsylvania Turnpike Commission (PTC) with regard to him, as an employee of an engineering firm, assisting with the management of the Automated Work Zone Speed Enforcement (AWZSE) project, which would include him coordinating with both the Pennsylvania Department of Transportation (PennDOT) and PTC? Brief Answer: YES. During the first year following termination of employment with the Pennsylvania Turnpike Commission (PTC), Section 1103(g) of the Ethics Act would apply and restrict him from engaging in any activity that would involve before PTC. Facts: You request an advisory from the Commission on behalf of Michael Davidson, PE, PTOE (Mr. Davidson,), who is employed with Drive Engineering Corporation (DRIVE). You have submitted facts that may be fairly summarized as follows: Slizofski, 21-538 Page 2 From March 29, 2019, to February 19, 2021, Mr. Davidson was employed with the Pennsylvania Turnpike Commission (PTC) as a Senior Traffic Operations Project Manager. You have submitted a copy of a document that summarizes the essential functions and responsibilities of the position of Senior Traffic Operations Project Manager, which is incorporated herein by reference. The Automated Work Zone Speed Enforcement program (the AWZSE Program) is a joint program between the Pennsylvania Department of Transportation (PennDOT) and PTC. On January 10, 2019, PennDOT and Rummel, Klepper & Kahl, LLP (RK&K) executed PennDOT contract E04496 (the PennDOT Contract), pursuant to which RK&K is to perform work and services for the AWZSE Program. The PennDOT Contract is administered through PennDOT, with PTC reimbursing PennDOT for its share of the costs associated with the AWZSE Program. Mr. Davidson is currently employed with DRIVE as a Project Manager/Senior Traffic Engineer. DRIVE serves as a subcontractor to RK&K. While an employee of PTC, Mr. Davidson did not have any direct or indirect involvement with the AWZSE Program. Additionally, at the time the PennDOT Contract was awarded to RK&K, of which DRIVE is a subcontractor, Mr. Davidson was not an employee of PTC. You conclude by stating that you are requesting the Commission to determine the eligibility of Mr. Davidson to work on the program management of this contract for PennDOT. 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 Traffic Operations Project Manager for PTC, Mr. Davidson was See, Pa.C.S. § 1102; 51 Pa. Code § 11.1; McClain, Advice 07-533. This conclusion is based upon the submitted document summarizing the essential functions and responsibilities of the position of which when reviewed on an objective basis, indicates 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. Slizofski, 21-538 Page 3 Consequently, upon termination of employment with PTC, Mr. Davidson 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 § 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). 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. Slizofski, 21-538 Page 4 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. 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 body with which a public official/public employee is o 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 Mr. Davidson is deemed to have been associated upon termination of his employment with the Pennsylvania Turnpike Commission is the Pennsylvania Turnpike Commission in its entirety, including but not limited to the Department/Division/etc. of Traffic Operations. Therefore, for the first year following termination of his employment with the Pennsylvania Turnpike Commission, Section 1103(g) of the Ethics Act would apply and restrict Mr. Davidson from including but not limited to DRIVE before the Pennsylvania Turnpike Commission. Slizofski, 21-538 Page 5 With few exceptions, contractual arrangements between a former public official/public employee and the former governmental body are prohibited by Section 1103(g). Exceptions include where: (1) the restrictions do not apply because a former public official/public employee is acting as an impartial arbiter between the former governmental body and others, and hence is not representing himself before his former governmental body, Confidential, Opinion, 92 -005; and (2) where the payments to the former public official /public employee are limited to expenses incurred. Confidential, Opinion, 97 -012. DRIVE, serves as a subcontractor to RK&K. Mr. Davidson is prohibited from representing employees, agents, and/or authorized representatives. This prohibition terminates one-year To the extent Mr. Davidson can navigate his representation to exclude PTC, he may proceed to manage, as an employee of DRIVE, the Automated Work Zone Speed Enforcement (AWZSE) project before the Pennsylvania Department of Transportation (PennDOT). He is prohibited from representing himself, RK&K and/or DRIVE before the Pennsylvania Turnpike Commission, including, but not limited, to such scenarios as outlined 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 Traffic Operations Project Manager for the Pennsylvania Turnpike Commission (PTC), Mr. Davidson was Public Official and et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. The former governmental body would be the Pennsylvania Turnpike Commission (PTC) in its entirety. For the first year following termination of his employment with PTC, Section 1103(g) of the Ethics Act would apply and restrict Mr. including but not limited to DRIVEbefore PTC. 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. Slizofski, 21-538 Page 6 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