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HomeMy WebLinkAbout22-558 MaldetPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Daniel Maldet Dear Mr. Mallet: IK �V STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 December 21, 2022 FACSIMILE: 717-787-0806 WEBSITE: www.etliics.pa.gov 22-558 This responds to your letter received November 22, 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 sec.., would impose any prohibitions or restrictions upon you with regard to performing job duties for an engineering firm following termination of your employment as a Civil Engineer Trainee with the Pennsylvania Department of Transportation ("PerinDOT"). Facts: BriefAnswer: YES. During the first year following termination of your employment with PemiDOT, Section 1103(g) of the Ethics Act would apply and restrict you from performing any job duties that would involve "representation" of a "person" — including but not limited to a new employer such as an engineering firm — before PennDOT. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. As of June 2022, you completed ten months of employment as a Civil Engineer Trainee with PennDOT in Engineering District 9-0 ("District 9-0"). You subsequently obtained employment at a local construction company. While you were employed with PennDOT, your job responsibilities included plans preparation for in-house roadway projects. You state that you were not involved in preparing planned project notices, advertising projects, scoping field views, preparing scope -of -work or cost estimates, reviewing Statements of Interests, selecting projects, approving or releasing project payments, or corresponding or interacting with contractors, engineers, municipalities, or business partners. Maldet, 22-558 December 21, 2022 Page 2 You are currently employed with an engineering firm (the "Engineering Firm") as an entry- level engineer/Engineer I in a structures and highways design department. You began working for the Engineering Firm in September 2022 in order to continue your training in roadway design and possibly obtain training in bridge design as well as your CBSI certification. In the next year, you will not be responsible for making any design decisions or signing any documents as it will take several years to reach the level of competency required to do so. The Engineering Firm has been the bridge engineer for a county (the "County") for more than 25 years. The County selects its bridge engineer via a qualifications -based selection process every five years. Contracts that the County awarded to the Engineering Firm are being administered through the Engineering Construction Management System ("ECMS"). Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to performing job duties for the Engineering Firm. In particular, you pose the following questions: (1) Whether you would be permitted to perform design and drafting activities on County projects for the Engineering Firm; and (2) Whether you would be permitted to actively participate in field training on NBIS contracts in order to begin your pursuit of a CBSI certification. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1 107(1 1) 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 the submitted facts do not include a position description for your former position with PennDOT, this Advice assumes, without deciding, that during your employment as a Civil Engineer Trainee with PennDOT in District 9-0, 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. (It is noted that Civil Engineers with PennDOT are considered public employees subject to the Ethics Act.) Consequently, upon termination of your employment with PennDOT, you became a "former public employee" subject to Section I I03(g) of the Ethics Act. Section 1103(g) of the Ethics Act provides: § 1103. Restricted activities Maldet, 22-558 December 21, 2022 Page 3 (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: § 11.02. 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 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 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 Maid et, 22-558 December 21, 2422 Page 4 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. Abrarns/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 off cial/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 is PennDOT in its entirety, including but not limited to District 9-0. 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 your new employer, the Engineering Firm — before PennDOT. Turning to your specific questions, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from performing design and drafting activities on County projects for the Engineering Firm or actively participating in field training on NBIS contracts in order to begin your pursuit of a CBSI certification as long as in so doing, you would not engage in prohibited representation before PennDOT as set forth 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: This Advice assumes, without deciding, that during your employment as a Civil Engineer Trainee with PennDOT in District 9-0, you were considered a "public employee" subject to the Maidet, 22-558 December 21, 2022 Page 5 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 became a "former public employee" subject to Section 1103(g) of the Ethics Act. Your former governmental body is PennDOT in its entirety, including but not limited to District 9-0. 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 your new employer, the Engineering Firm — before PennDOT. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from performing design and drafting activities on County projects for the Engineering Firm or actively participating in field training on NBIS contracts in order to begin your pursuit of a CBSI certification as long as in so doing, you would not engage in prohibited representation before PennDOT as set forth 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. Respectfully, Bridget K. Guilfoyle Chief Counsel