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Home My WebLink About24-573 VaughnPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Gregory J. Vaughn Dear Mr. Vaughn: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL November 15, 2024 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 24-573 This responds to your letter dated October 31, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec .., would prohibit you from accepting employment with a firm that has matters before the Pennsylvania Department of Transportation ("PennDOT") following termination of your service with PennDOT as an annuitant under the 95-day "return to state service" provision at 71 Pa.C.S. § 5706(A.1). Brief Answer: NO. The Ethics Act would not prohibit you from accepting employment with a firm that has matters before PennDOT following termination of your service as an annuitant. However, during the first year following termination of your service as an annuitant, 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 the firm — before your "former governmental body," PennDOT. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Va�u hn, 24-573 November 15, 2024 Page 2 On September 15, 2023, you retired from your employment as a Highway Design Manager with PennDOT in the Right -of -Way, Utilities, and Grade Crossing Division within the Bureau of Design and Delivery. You have submitted a copy of your official PennDOT position description, which document is incorporated herein by reference. On October 15, 2024, you returned to work with PennDOT in the Right -of -Way, Utilities, and Grade Crossing Division as an annuitant. You have submitted a copy of a memorandum from the Governor's Office of Administration that describes the duties of your annuitant position, which document is incorporated herein by reference. Your duties as an annuitant have included reviewing documents associated with projects that impact or involve railroad operations and processing reimbursement agreements associated with these projects. You have also provided guidance on questions pertaining to policy and procedures outlined in PennDOT's Grade Crossing Manual. You will work as an annuitant with PennDOT until November 27, 2024. You seek guidance as to whether the one-year post -employment restrictions of Section 1103(g) of the Ethics Act would apply to you when your annuitant status with PennDOT ends on November 27, 2024. In particular, you ask whether those restrictions would prohibit you from accepting employment with a firm that has matters before 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 relevantto 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. When an individual who has retired from Commonwealth service returns to Commonwealth service as an annuitant to perform services falling within the Ethics Act's definition of "public employee" (see, 65 Pa.C.S. § 1102), the individual becomes a "public employee" subject to the Ethics Act. See, Graves, Opinion 00-009, McGlathery, Opinion 00-004. Consequently, when the individual ceases providing such annuitant services, the individual will 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." Section 1103(g) of the Ethics Act provides: § 1103. Restricted activities (g) Former official or employee. No former public official or public employee shall represent a person, with promised Va�u hn, 24-573 November 15, 2024 Page 3 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, 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 "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; (5) lobbying; and (6) acting to make known to the former governmental body the representation of, or work for, a new employer. Popovich, Opinion 89 -005, Edley, Opinion 17- 002; Confidential Opinion, 17-007; Valentine, Opinion 20-003. 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 Va�u hn, 24-573 November 15, 2024 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. 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: Based upon the submitted facts as to your duties and authority as an annuitant with PennDOT, the necessary conclusion is that when you commenced providing services to PennDOT as an annuitant, you became a "public employee" subject to the Ethics Act and the regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1101; 51 Pa. Code § 11.1; Graves, supra; McGlathery, supra. Consequently, when you cease providing such annuitant services, you will become a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your service with PennDOT as an annuitant would be PennDOT in its entirety. Therefore, for the first year following termination of your service with PennDOT as an annuitant, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" — including but not limited to yourself or 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 a firm that has matters before PennDOT. However, during the first year following termination of your service with PennDOT as an annuitant, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve prohibited representation of the firm before PennDOT as delineated above. Va�u hn, 24-573 November 15, 2024 Page 5 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 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