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HomeMy WebLinkAbout21-542 Kovacs 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 August 10, 2021 To the Requester: 21-542 Dear Mr. Michael Quintin Kovacs: This responds to your correspondence received July 15, 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 seq., would impose restrictions upon you with regard to being employed as a Transportation Assistant for a construction consulting firm that operates in the Commonwealth of Pennsylvania following termination of your employment as a Roadway Programs Technician 1 for the Pennsylvania Department of Transportation ()? Brief Answer: YES. Although Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a Transportation Assistant for the construction consulting firm, 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 including but not limited to the construction consulting firm before PennDOT. Facts: You request an advisory from the Commission regarding the post-employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows: You are currently employed as a Roadway Programs Technician 1 for PennDOT in District 6-1, Bucks County, Pennsylvania. You have submitted a copy of a job posting for your position with PennDOT, which is incorporated herein by reference. A copy of the job classification Kovacs, 21-542 August 10, 2021 Page 2 specifications for the position of Roadway Programs Technician 1 (job code 12510) has been obtained and is also incorporated herein by reference. You state that in your current position with PennDOT, you primarily monitor and oversee material order transactions for the Commonwealth, including but not limited to receipt of materials You assist the Roadway Programs Coordinator in all responsibilities, including reviewing daily reports against supporting documents, processing material slips, and monitoring inventory accuracy. You have an opportunity to fill a Transportation Assistant position with a construction on projects with PennDOT and other entities in Pennsylvania. As a Transportation Assistant, you would work directly under the supervision of the Project Supervisor. The Transportation Assistant would monitor and document that the roadway and/or bridge project is being built in accordance with the plans and specifications. You state that there is no guarantee that you will be hired for the Transportation Assistant position. You additionally state that there is no guarantee that you would be working on a PennDOT project if you would be hired as a Transportation Assistant for the Firm. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to accepting employment as a Transportation Assistant 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. As a Roadway Programs Technician 1 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; LeVan-Wertz, Order No. 550-S. This conclusion is based upon the submitted facts 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. Kovacs, 21-542 August 10, 2021 Page 3 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. 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; Kovacs, 21-542 August 10, 2021 Page 4 (4) participating in any matters before the former governmental body as to acting on behalf of a person; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89-005; Edley, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. 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 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 District 6-1, Bucks County, Pennsylvania. Therefore, for 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 including but not limited to a new employer before PennDOT. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a Transportation Assistant for the Firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties that would involve prohibited representation before PennDOT as delineated above. Kovacs, 21-542 August 10, 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 Roadway Programs Technician 1 for PennDOT, you are a public employee subject to the Ethics Act, 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your employment with PennDOT, you would The former governmental body would be PennDOT in its entirety, including but not limited to District 6-1, Bucks County, Pennsylvania. For 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 including but not limited to a new employer before PennDOT. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a Transportation Assistant for the Firm. However, during the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties that would involve prohibited representation before PennDOT as delineated above. 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