HomeMy WebLinkAbout22-541 MilnesPHONE: 717-783-1610
TOLL FREE: 1-800-932-0936
To the Requester:
Kevin E. Milnes, P.E.
Dear Mr. Milnes:
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
October 13, 2022
22-541
This responds to your letter dated September 25, 2022, 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
SeMc ., would impose any prohibitions or restrictions upon you with regard to post -public
employment following your service as an Assistant Highway District Engineer with the
Pennsylvania Department of Transportation ("PennDOT").
Brief Answer: YES. Although Section 1103(g) of the Ethics Act would not prohibit you
from accepting employment following your public service, 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, the material
portion of which may be fairly summarized as follows.
Milnes, 22-541
October 13, 2022
Page 2
You are currently employed as an Assistant Highway District Engineer with PennDOT in
Engineering District 5-0 ("District 5-0"), in which capacity you serve as an Assistant District
Executive for Construction. You have submitted a copy of your official PennDOT position
description, which document is incorporated herein by reference. A copy of the job classification
specifications for the position of Assistant Highway District Engineer (job code 11710) has been
obtained and is also incorporated herein by reference.
You state that you plan to retire on October 14, 2022. Following retirement, you might
pursue employment with a consultant that performs work for several local, state, and private
agencies, including PennDOT.
Based upon the above submitted facts, you seek guidance as to whether the Ethics Act
would impose any restrictions upon you following termination of your employment with
PennDOT. In particular, you pose the following questions:
(1) Whether you would be permitted to take a position with a consulting firm, and if
so, whether there would be restrictions on the type of work you can perform as it
relates to PennDOT.
(2) Whether you would be able to take a position with a consulting firm and perform
work for entities other than PennDOT, such as the Pennsylvania Turnpike
Commission ("PTC"), Pennsylvania Department of General Services ("DGS"),
Pennsylvania Department of Environmental Protection ("DEP"), and local
municipalities.
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 an Assistant Highway District Engineer with PennDOT in District 5-0, you would be
considered a "public employee" subject to the provisions of the Ethics Act and the Regulations of
the State Ethics Commission. See, 65 Pa. C.S. § 1102; 51 Pa. Code § 11.1. 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.
Milnes, 22-541
October 13, 2022
Page 3
Consequently, upon termination of your employment with PennDOT, you would become
a "former public employee" subject to Section 1103(g) of the Ethics Act.
Section 1103(g) of the Ethics Act provides:
§ 1103. Restricted activities
(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 following terms related to Section 1103(g) are 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 employee himself, Confidential Opinion, 93-005, as
well as a new governmental employer. Ledebur, Opinion 95-007.
The term "representation" 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
Milnes, 22-541
October 13, 2022
Page 4
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 the 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; 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 5-0. 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 yourself or a new employer such as a consultant — before
PennDOT.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries
shall be addressed.
Milnes, 22-541
October 13, 2022
Page 5
Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a
consultant on contracts with a private business, consulting or engineering firm, governmental
body, etc., however, during the first year following termination of your employment with
PennDOT, Section 1103(g) of the Ethics Act would prohibit you from providing services to
PennDOT as such would necessarily involve prohibited representation before PennDOT.
Section 1103(g) would not prohibit you from working for a consulting firm on contracts
for agencies other than PennDOT, such as the PTC, DGS, DEP and local municipalities, to the
extent that you would not be representing a person before PennDOT 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 than the
Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act.
Specifically not addressed herein is the applicability of the Governor's Code of Conduct.
Conclusion:
As an Assistant Highway District Engineer with PennDOT in District 5-0, you would be
considered a "public employee" subject to the provisions of the Ethics Act and the Regulations of
the State Ethics Commission. See, 65 Pa. C.S. § 1102; 51 Pa. Code § 11.1. Upon termination of
your employment with PennDOT, you would become a "former public employee" subject to
Section 1103(g) of the Ethics Act. The former governmental body would be PennDOT in its
entirety, including but not limited to District 5-0. 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.
Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with
a consulting firm, private business, governmental body, etc., however, during the first year
following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act
would prohibit you from providing services to PennDOT as such would necessarily involve
prohibited representation before PennDOT.
Section 1103(g) would not prohibit you from working for a consulting firm on contracts
for agencies other than PennDOT, such as the PTC, DGS, DEP and local municipalities, to the
extent that you would not be representing a person before PennDOT as outlined 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.
Milnes, 22-541
October 13, 2022
Page 6
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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel