HomeMy WebLinkAbout22-545 Hetrick
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
October 26, 2022
To the Requester:
Michael T. Hetrick
22-545
Dear Mr.Hetrick:
This responds to your emaildated October 18, 2022, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the
issues presented below:
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., would impose any prohibitions or restrictions upon you with regard to post-public
employment following your service as an Administrative Officer 2, CDL Compliance
Manager 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.
You are currently employed as anAdministrative Officer 2 – CDL Compliance Manager
with PennDOT. You have submitted acopy of your PennDOT position description, which
document is incorporated herein by reference. Your job includes such duties as ensuring that third-
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October 26, 2022
Page 2
party CDL companies followed the terms of their contracts with PennDOT, conducting field audits
to ensure compliance with applicable testing laws and contract compliance, scheduling overt and
covert auditactivities, tracking audit details for all CDL third-party testers and examiners,
addressing minor contract concerns discovered during audits, investigatingcustomer complaints
against CDL third-party testers and taking action as needed, and assisting with the training of new
CDL examiners.
You state that you are considering leaving public employment to accept employment with
Roadmaster Drivers School where your primary job duty would be conducting CDL tests, then
eventually becoming the School Director. Roadmaster Drivers School has an active contract to
conduct CDL testing for PennDOT.
Based upon the above submitted facts, you seek guidance as to whether the Ethics Act
would impose any restrictions upon you with regard to working for Roadmaster Drivers School
following your employment with 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 ofthe 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 Administrative Officer 2 – CDL Compliance Manager with PennDOT, you would
be considered a “public employee” subject to the provisions of the Ethics Actand 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, which when reviewed on an objective basis, indicates clearly
that the power existedto 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.
Section 1103(g) of the Ethics Act provides:
§ 1103. Restricted activities
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October 26, 2022
Page 3
(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).
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, interalia, 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 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 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
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October 26, 2022
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. 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 formergovernmental 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 influencethe
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 the District in which you were employed. Therefore, for the first year following
termination of your employmentwith PennDOT, Section 1103(g) of the Ethics Act would apply
and restrict "representation" of "persons" before PennDOT.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiry
shall be addressed. Section 1103(g) of the Ethics Act would not prohibit you from accepting
employment with Roadmaster Drivers School, 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 on behalf of Roadmaster Drivers School as such would necessarily
involve prohibited representation before PennDOT.
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.
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October 26, 2022
Page 5
Conclusion:
As an Administrative Officer 2 – CDL Compliance Manager with PennDOT, you would
be considereda “public employee”subject to the provisions of the Ethics Actand 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 the District in which you were employed. 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
Roadmaster Drivers School, 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 on behalf of Roadmaster Drivers School as such would necessarily involve
prohibited representation before PennDOT.
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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel