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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
December 13, 2022
To the Requester:
Gregory L. Maines
22-556
Dear Mr.Maines:
This responds to your letter dated November 11, 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
seq., would impose any prohibitions or restrictions upon you with regard to working for
the EADS Group, Inc. as a Construction Inspector following your service as a
Transportation Construction Manager 1with the Pennsylvania Department of
Transportation (“PennDOT”).
Brief Answer: YES. Although Section 1103(g) of the Ethics Act would not prohibit you
from accepting employment with the EADS Group, Inc. 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/job
duties that would involve “representation” of a “person” – including but not limited to the
EADS Group, Inc. – 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.
Maines, 22-556
December 13, 2022
Page 2
On September 17, 2022, you retired from your employment as a Transportation
Construction Manager 1 for PennDOT in Engineering District 2-0 (“District 2-0”). 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
Transportation Construction Manager 1 (job code 10640) has been obtained and is also
incorporated herein by reference.
As a Transportation Construction Manager 1, you were responsible for overseeing multiple
construction projects and the supervision of the inspection staffing for those projects. You
resolved or provided support with project issues during the construction phase that required
coordination with the contractor, municipalities, property owners, and other project stakeholders.
The EADS Group, Inc. would like to employ you as a Construction Inspector on a project
in Centre County, Pennsylvania (the “Centre County Project”). The Centre County Board of
Commissioners is the client for the Centre County Project, which consists of the rehabilitation of
three separate structures in Curtain Township, Miles Township, and Spring Township. The Centre
County Project is titled the “2018 Centre County Local Bridge Bundle” and is funded in part
through a PennDOT Multimodal Transportation Fund grant.
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 the EADS Group, Inc. as a
Construction Inspector on the Centre County Project.
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.
During your employment as a Transportation Construction Manager 1 with PennDOT in
District 2-0, you were 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 existed 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 became a
“former public employee” subject to Section 1103(g) of the Ethics Act.
Maines, 22-556
December 13, 2022
Page 3
Section 1103(g) of the Ethics Act provides:
§ 1103. Restricted activities
(g)Former official or employee.—No former public
official or public employee shall representa 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.
Maines, 22-556
December 13, 2022
Page 4
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 are deemed to have been associated upon
termination of your employment with PennDOT isPennDOT in its entirety, including but not
limited to District 2-0. Therefore, for the first year following termination of your employmentwith
PennDOT, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a
"person" – including but not limited to a new employer – before PennDOT.
Turning to your specific question, you are advised that Section 1103(g) of the Ethics Act
would not prohibit you from accepting employment with theEADS Group, Inc. 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 representation
of the EADS Group, Inc. before PennDOT as outlined above.Section 1103(g) would prohibit you
from serving as a Construction Inspector for the EADS Group, Inc. on the Centre County Project
unless you would be able to do so without engaging in 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
Maines, 22-556
December 13, 2022
Page 5
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:
During your employment as a Transportation Construction Inspector 1 with PennDOT in
District 2-0, you wereconsidered a “public employee” subject to the provisions of the Ethics Act
and theRegulations of the State Ethics Commission. See, 65 Pa. C.S. § 1102; 51 Pa. Code § 11.1.
Upon termination of your employment with PennDOT, you became a “former public employee”
subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its
entirety, including but not limited to District 2-0. 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" – 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 with
the EADS Group, Inc. 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 representation of the EADS Group, Inc. before PennDOT as outlined
above. Section 1103(g) would prohibit you from serving as a Construction Inspector for the
EADS Group, Inc. on the Centre County Project unless you would be able to do so without
engaging in 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,
Martin W. Harter
Acting Chief Counsel