HomeMy WebLinkAbout23-549 Sniegocki
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
September 26, 2023
To the Requester:
Michael W. Sniegocki
23-549
Dear Mr. Sniegocki:
This responds to your letter dated September 11, 2023, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the
general issues presented below:
Issues:
(1) Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., would impose restrictions upon you with regard to performing work in your position
as a Mass Transit Manager 1 for the Pennsylvania Department of Transportation
(“PennDOT”) following termination of your employment as the Director of Road
Operations for Pittsburgh Regional Transit.
Brief Answer: YES. During the first year following termination of your employment with
Pittsburgh Regional Transit, Section 1103(g) of the Ethics Act would apply and restrict
you from performing any job duties for PennDOT that would involve “representation” of
PennDOT before your “former governmental body,” Pittsburgh Regional Transit.
(2) Whether your receipt of a pension from Pittsburgh Regional Transit or your son’s
employment with Pittsburgh Regional Transitas a Bus Operator would cause you to have
a conflict of interest under Section 1103(a) of the Ethics Act with regard to performing
work for PennDOT on matters involving safety oversight of Pittsburgh Regional Transit’s
rail transit system.
BriefAnswer: Neither your receipt of a pension from Pittsburgh Regional Transit nor your
son’s employment with Pittsburgh Regional Transit as a Bus Operator would be abasis for
you to have a conflict of interest under Section 1103(a) of the Ethics Act with regard to
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September 26, 2023
Page 2
performing work for PennDOT on matters involving safety oversight of Pittsburgh
Regional Transit’s rail transit system.
Facts:
You request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows.
Approximately thirty years ago, you began employment with the Port Authority of
Allegheny County. In June 2022, the Port Authority of Allegheny County was rebranded to
Pittsburgh Regional Transit. On May 1, 2023, you retired from your employment with Pittsburgh
Regional Transit. At the time of your retirement, you were the Director of Road Operations for
Pittsburgh Regional Transit. You collect a full pension from ATU Local 85 and Pittsburgh
Regional Transit.
On May 15, 2023, you began employment with PennDOT as a Mass Transit Manager 1, in
which capacity you serve as a State Safety Oversight Regional Manager for the Western Region.
Your position is within the State Safety Oversight Division of the Bureau of Rail, Freight, Ports
and Waterways. The State Safety Oversight Division serves as the State Safety Oversight Agency
(“the SSOA”)responsible for providing safety oversight for transit agencies that operate rail fixed
guideway public transportation systems which are not subject to oversight by the Federal Railroad
Administration.
The SSOA provides safety oversight according to a transit agency’s Public Transportation
Agency Safety Plan (“PTASP”), which is developed by the transit agency and submitted to the
SSOA for approval. The PTASP is the framework by which the transit agency will operate a safe
rail transit system. The SSOA oversees the transit agency to ensure that it is following its PTASP.
Safety oversight is accomplished through reviewing statistics, analyzing trends, reviewing
accident reports, investigating accidents, and performing Operational Reviews and System Station
Reviews/Audits.
For an Operational Review, personnel of the SSOA or one of its contractors ride one of the
transit agency’s light rail vehicles just as regular passengers would and observe whether the
operator of the light rail vehicle complies with rules applicable to operators. These observations
are documented in a report that is forwarded to the transit agency’s Chief Safety Officer and
Director of Rail Service Delivery for awareness only. During a System Station Review/Audit,
personnel of the SSOA or one of its contractors ride a light rail vehicle from one station to another
and then exit the light rail vehicle to inspect the condition of the station and look for areas that
could be a potential safety hazard to the public or the transit agency’s employees. The observations
made during a System Station Review/Audit are documented in a report that is forwarded to the
transit agency’s Chief Safety Officer, who takes steps to get the observations to the proper
departments for elimination of the potential safety hazards. The SSOA cannot issue any type of
discipline to or impose any punitive damages upon an operator for not complying with the
applicable rules, nor does the SSOA have any authority to impose discipline or fines with respect
to potential safety hazards.
Sniegocki, 23-549
September 26, 2023
Page 3
Your job duties with PennDOT include providing safety oversight for Pittsburgh Regional
Transit and Cambria County Transit Authority, which operate rail fixed guideways that are not
governed by the Federal Railroad Administration. Your role is to observe whether the transit
agencies’ rules are being followed and their PTASPs are being carried out, with an emphasis on
Safety Management Systems principles. You have no direct or indirect interaction with these
transit agencies’ decision-making processes regarding contracts, grant applications, licenses,
regulatory matters, or auditing of finances.
Your eldest son currently works as a Rail Operator for Pittsburgh Regional Transit. In
October of this year, he will transfer out of the rail division and begin working as a Bus Operator
for Pittsburgh Regional Transit. You have no job duties related to Pittsburgh Regional Transit’s
bus system.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act wouldprohibit you from representing PennDOT before
Pittsburgh Regional Transit during the first year following your retirement from
Pittsburgh Regional Transit; and
(2) Whether your receipt of a pension from Pittsburgh Regional Transit or your son’s
employment with Pittsburgh Regional Transit as a Bus Operator would cause you
to have a conflict of interest with regard to performing the duties of your position
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.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. -- No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as follows:
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September 26, 2023
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§ 1102. Definitions
“Conflict” or “conflict of interest.” Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through his
holding public office or employment for the private pecuniary
benefit of himself, a member of his immediate family or a business
with which he or a member of his immediate family is associated.
The term does not include an action having a de minimis economic
impact or which affects to the same degree a class consisting of the
general public or a subclass consisting of an industry, occupation or
other group which includes the public official or public employee, a
member of his immediate family or a business with which he or a
member of his immediate family is associated.
“Authority of office or employment.” The actual power
provided by law, the exercise of which is necessary to the
performance of duties and responsibilities unique to a particular
public office or position of public employment.
“Immediate family.” A parent, spouse, child, brother or
sister.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or
“conflict of interest” (i.e., the “de minimis exclusion” and the “class/subclass exclusion”), 65
Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public
office or confidential information received by holding such a public position for the private
pecuniary (financial) benefit of the public official/public employeehimself, any member of his
immediate family, or a business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official/public employee would be required to
abstain from participation. The abstention requirement would extend to any use of authority of
office including, but not limited to, discussing, conferring with others, and lobbying for a particular
result. Juliante, Order 809.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics Commission, 610
Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public
official/public employee:
… must act in such a way as to put his \[office/public position\] to the
purpose of obtaining for himself a private pecuniary benefit. Such
directed action implies awareness on the part of the \[public
official/public employee\] of the potential pecuniary benefit as well
as the motivation to obtain that benefit for himself.
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September 26, 2023
Page 5
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a
public official/public employee “must be consciously aware of a private pecuniary benefit for
himself, his family, or his business, and then must take action in the form of one or more specific
steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231.
Section 1103(g) of the Ethics Act imposes post-termination of service/employment
restrictions upon a former public official/public employee with regard to “representing” a “person”
before “the governmental body with which he has been associated”:
§ 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.
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September 26, 2023
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The term “represent” 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
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.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
During your employment as the Director of Road Operations for Pittsburgh Regional
Transit, you were considered a “public employee” subject to the Ethics Act. Upon termination of
your employment with Pittsburgh Regional Transit on May 1, 2023, you became a “former public
employee” subject to Section 1103(g) of the Ethics Act. Your former governmental body is
Pittsburgh Regional Transit in its entirety. For the first year following termination of your
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September 26, 2023
Page 7
employment with Pittsburgh Regional Transit, Section 1103(g) of the Ethics Act would apply and
restrict “representation” of a “person” before Pittsburgh Regional Transit. The restrictions as to
representation outlined above must be followed.
When you began employment as a Mass Transit Manager 1 with PennDOT on May 15,
2023, you became a public employee subject to the Ethics Act. Accordingly, you are
simultaneously a former public employee with respect to your former governmental body,
Pittsburgh Regional Transit, and a public employee with respect to your current governmental
body, PennDOT. Cf., Moore, Opinion 05-008. As such, you are simultaneously subject to the
restrictions of Section 1103(g) of the Ethics Act (i.e., as a former public employee with respect to
Pittsburgh Regional Transit, you are prohibited from engaging in any activity that would involve
“representation” of a “person” before Pittsburgh Regional Transit) and the restrictions of Section
1103(a) of the Ethics Act (i.e., as a public employee with respect to PennDOT, you are prohibited
from engaging in conduct that would constitute a conflict of interest).
Turning to your specific questions, you are advised as follows.
In responseto your first question, you are advised that during the first year following
termination of your employment with Pittsburgh Regional Transit, Section 1103(g) of the Ethics
Act would restrict you from performing any job duties for PennDOT that would involve prohibited
representation before Pittsburgh Regional Transit as delineated above.
In response to your second question, you are advised that neither your receipt of a pension
from Pittsburgh Regional Transit nor your son’s employment with Pittsburgh Regional Transit as
a Bus Operator would be a basis for you to have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to performing work for PennDOT on matters involving safety oversight of
Pittsburgh Regional Transit’s rail transit system. It is noted that you would not have a conflict of
interest with regard to performing work on matters involving Pittsburgh Regional Transit unless:
(1) you would be consciously aware of a private pecuniary (financial) benefit for yourself, a
member of your immediate family, or a business with which you or a member of your immediate
family is associated; and (2) your action(s) would constitute one or more specific steps to attain
that benefit. See, Kistler, supra.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.
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 recordand 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.
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September 26, 2023
Page 8
Any such appeal must be in writing and must be actually receivedat 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