HomeMy WebLinkAbout23-508 SummaPHONE: 717-783-1610
TOLL FREE: 1-800-932-0936
To the Requester:
Richard Summa
Dear Mr. Summa:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
February 1, 2023
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.ya.�4ov
23-508
This responds to your email received January 19, 2023, 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 restrictions upon you with regard to performing work for a new
employer following termination of your employment as a Bridge and Structural Design
Supervisor with the Pennsylvania Department of Transportation ("PennDOT").
Brief Answer: YES. 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" including but not
limited to a new employer before your "former governmental body," PennDOT.
Facts:
You request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows.
You are currently employed as a Bridge and Structural Design Supervisor with PennDOT
in Engineering District 4-0, in which capacity you serve as a Bridge Project Manager. You have
submitted a copy of your official Commonwealth position description, which document is
incorporated herein by reference. A copy of the job classification specifications for the position
of Bridge and Structural Design Supervisor (job code 10810) has been obtained and is also
incorporated herein by reference.
Summa, 23-508
February 1, 2023
Page 2
You plan to retire from your employment with PennDOT in the near future. You have
been offered a post -retirement job with Michael Baker International ("Michael Baker") as a Senior
Bridge CADD Designer, which would involve working on Michael Baker's Pathways team as a
CADD Technician to produce structure design plans. You would work from home five days a
week, with occasional trips to Michael Baker's office in Harrisburg, Pennsylvania for project
meetings.
The following information about your potential post -retirement job was provided to you
by a Michael Baker associate. Michael Baker is the Engineer of Record for the Pathways project,
and it is contracted with a Concessionaire to perform the design and construction of six major river
crossing bridges. Invoices for this work would be submitted to the Concessionaire and would not
be submitted to or passed along to PennDOT, and your name would not appear on any invoices.
You would participate in project meetings with the Pathway's team, and you would not participate
in any meetings with PennDOT personnel or interact with PennDOT personnel in any way.
Based upon the above submitted facts, you seek guidance as to whether the Ethics Act
would impose prohibitions or restrictions upon you with regard to performing work for Michael
Baker on the Pathways project during the first year following termination of 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 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 Bridge and Structural Design Supervisor with PennDOT, you are a "public employee"
subject to 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.
Consequently, upon termination of your employment with PennDOT, you would become
a "former public employee" subject to Section 1103(g) of the Ethics Act.
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
with regard to "representing" a "person" before "the governmental body with which he has been
associated":
Summa, 23-508
February 1, 2023
Page 3
§ 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).
The terms "represent," "person," and "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
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
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
Summa, 23-508
February 1, 2023
Page 4
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 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 Engineering District 4-0. 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 a new employer before PennDOT.
You are advised that Section 1103(g) of the Ethics Act would not prohibit you from
accepting employment with Michael Baker. 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 for Michael Baker that would involve prohibited representation before
PennDOT. Section 1103(g) of the Ethics Act would not prohibit you from performing work for
Michael Baker on the Pathways project subject to the condition that in so doing, you would not
engage in prohibited representation before PennDOT as delineated 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 other
than the Ethics Act has not been considered.
Summa, 23-508
February 1, 2023
Page 5
Conclusion:
As a Bridge and Structural Design Supervisor with PennDOT, you are a "public employee"
subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination
of your employment with PennDOT, you would become a "former public employee" subject to
Section 1103(g) of the Ethics Act. Your former governmental body would be PennDOT in its
entirety, including but not limited to Engineering District 4-0. 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
Michael Baker. 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
for Michael Baker that would involve prohibited representation before PennDOT. Section 1103(g)
of the Ethics Act would not prohibit you from performing work for Michael Baker on the Pathways
project subject to the condition that in so doing, you would not engage in 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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel