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HomeMy WebLinkAbout26-518 DelBianco PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL March 31, 2026 To the Requester: Brendan DelBianco 26-518 Dear Mr.DelBianco: This responds to your letter dated March 3, 2026, received March 11, 2026, by which you requested anadvisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: 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 for a new employer following termination of your employment as aTransportation Construction Manager (Senior Civil Engineer 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 youfrom engaging in any activity that would involve “representing” a “person” — including but not limited to your new employer — before your “former governmental body,” PennDOT. Facts: Yourequest an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Until March 2026, you were employed with PennDOT as a Transportation Construction Manager (Senior Civil Engineer Supervisor) in Engineering District 11-0. In your role with DelBianco,26-518 March 31, 2026 Page 2 PennDOT, you were responsible for overseeing transportation construction projects, and your duties included contract administration, coordinating with contractors and consultants, construction oversight, and ensuring compliance with applicable specifications and regulations. You worked only on state transportation infrastructure projects administered through PennDOT. You have accepted employment with an ironworking company, Amelie Construction & Supply, LLC(“the Company”), as a Project Manager/Estimator. This position will involve estimation, coordination, and management of structural steel and ironwork projects. The Company’s work may include projects involving bridges, public buildings, or other types of infrastructure owned by cities or other municipalities. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to performing work for the Company during the first year following termination of your employment with PennDOT. In particular, you pose the following questions: (1) Whether you would be permitted to perform estimating, project management, or supervisory services on projects involving cities or other municipal entities where such projects would not be administered by PennDOT or another Commonwealth agency; (2) Whether any restrictions imposed upon you would apply to projects funded, administered, or overseen by municipal governments where you had no personal or official involvement with such projects during your Commonwealth employment; and (3) Whether there would be any restrictions imposed upon you with regard to interacting with PennDOT or other Commonwealth agencies during the applicable post-employment period. 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 materialfacts 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. The post-employment restrictions of Section 1103(g) of the Ethics Act apply to former public officials/public employees. 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”: § 1103. Restricted activities DelBianco,26-518 March 31, 2026 Page 3 (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 associatedfor 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 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 DelBianco,26-518 March 31, 2026 Page 4 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 your former capacity as a Transportation Construction Manager (Senior Civil Engineer Supervisor) with PennDOT, you were a public employee subject to the provisionsof the Ethics Act. Consequently, upon termination of your employment with PennDOT, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. 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 Engineering District 11-0.For the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict you from “representing” a “person”—including but not limited toyour new employer, the Company—before PennDOT. The restrictions as to representation outlined above must be followed. During the one-year period of applicability of Section 1103(g) of the Ethics Act, you would be prohibited from interacting with PennDOT and its staff in any manner that would constitute representing the Company before PennDOT. Section 1103(g) would not impose any restrictions upon you with regard to interacting with any other Commonwealth agency. Subject to the condition that you would not engage in any activity that would involve prohibited representation before PennDOT, Section 1103(g) would not prohibit you from: (1) performing estimating, project management, or supervisory services on projects involving cities or other municipal entities where such projects would not be administered by PennDOT or another Commonwealth agency; or (2) DelBianco,26-518 March 31, 2026 Page 5 working on projects funded, administered, or overseen by municipal governments where you had no personal or official involvement with such projects during your Commonwealth employment. 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. 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 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