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HomeMy WebLinkAbout26-519 Covert 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 April 3, 2026 To the Requester: Josiah T. Covert, P.E. 26-519 Dear Mr. Covert: This responds to your letter dated March 11, 2026, by which you requested an advisory 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 a Senior Civil Engineer Supervisor (Bridges) 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 “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. On March 2, 2026, you began employment with Hunt Engineers, Architects, Land Surveyors & Landscape Architects DPC (“the Firm”) as a Senior Bridge Project Manager. Prior to commencing your employment with the Firm, you were employed as a Senior Civil Engineer Covert, 26-519 April 3, 2026 Page 2 Supervisor (Bridges) with PennDOT in Engineering District 3-0. In your role with PennDOT, you were primarily responsible for managing project personnel and keeping projects within their budgets. The Firm currently has a Request for Proposal from Wyalusing Township (“Township”), Bradford County, Pennsylvania, to provide engineering services for a bridge replacement project. The Township will use a Commonwealth-funded Multimodal Transportation Fund grant to pay for these engineering services. In your role with PennDOT you had no interaction with any governmental body with regard to this project. If the Firm is awarded a contract for the bridge replacement project, it may wish to use you as the Design Project Manager for the project. As part of your role as a Senior Bridge Project Manager with the Firm, you will seek to build relationships with bridge and roadway owners in Pennsylvania and help them facilitate maintaining their local transportation infrastructure. These owners will include townships, boroughs, and counties, and they will be looking to use federal, state, and local funds to achieve their goals. 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 the Firm during the first year following termination of your employment with PennDOT. In particular, you pose the following questions pertaining to the “revolving door/post-termination of employment” restrictions of Section 1103(g) of the Ethics Act: (1) Whether you would be permitted to perform work as the Design Project Manager for the Township bridge replacement project if doing so would require you to interact with PennDOT; (a) If you would not be permitted to interact with PennDOT as the Design Project Manager for the Township bridge replacement project, whether you would be permitted to work on the Township bridge replacement project as a project manager if the project team would be structured to ensure that you would have no interaction with PennDOT and you would have someone else employed with the Firm coordinate directly with PennDOT; (b) If the above arrangement for you to work as a project manager for the Township bridge replacement would not be permitted, whether you could be involved with the Township bridge replacement project in any way; (2) Whether you would be permitted to: (a) Help local governmental bodies facilitate maintaining their transportation infrastructure with the use of federal, state, and local funds; (b) Provide project information to Firm personnel who help municipalities obtain grant funds if you could do so without having direct contact with PennDOT; Covert, 26-519 April 3, 2026 Page 3 (c) Whether you would be permitted to attending meetings of regional planning agencies and interact with these agencies where you would not interact with PennDOT staff who would be present at the meetings; (3) Whether you would be permitted to represent the Firm at industry events, including but not limited to plant tours, conferences, instructor-led in-class seminars, and instructor-led online seminars, where PennDOT representatives with whom you have prior relationships may be present at the events; (4) Whether you would be permitted to represent the Firm before a PennDOT Engineering District that you had no relationship with while you were employed with PennDOT; and (5) Whether you would be permitted to solicit PennDOT for work without restrictions after March 2, 2027. 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 (g) Former official or employee.--No former public official or public employee shall representa 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 Covert, 26-519 April 3, 2026 Page 4 “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; (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 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 Covert, 26-519 April 3, 2026 Page 5 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 Senior Civil Engineer Supervisor (Bridges) with PennDOT, you were a public employee subject to the provisions of 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 3-0. 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 to your new employer, the Firm— before PennDOT. The restrictions as to representation outlined above must be followed. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first question, you are advised as follows. Section 1103(g) of the Ethics Act would prohibit you from performing work as the Design Project Manager for the Township bridge replacement project if doing so would require you to interact with PennDOT, as such interaction would constitute prohibited representation of the Firm before PennDOT. However, Section 1103(g) would not prohibit you from working as a project manager for the Township bridge replacement project where the project team would be structured to ensure that you would have no interaction with PennDOT and you would have someone else employed with the Firm coordinate directly with PennDOT. With respect to your second question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from: (1) helping governmental bodies facilitate maintaining their transportation infrastructure with the use of federal, state, and local funds; (2) providing project information to Firm personnel who help municipalities obtain grant funds; or (3) attending meetings of regional planning agencies and interacting with these agencies where PennDOT staff may also be present at the meetings, subject to the condition that in so doing, you would not engage Covert,26-519 April 3, 2026 Page 6 in any activity that would involve prohibited representation of the Firm before PennDOT as delineated above. In response to your third question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from representingthe Firm at industry events, including but not limited to plant tours, conferences, instructor-led in-class seminars, and instructor-led online seminars, where PennDOT representatives with whom you have prior relationships may be present at the events, subject to the condition that in so doing, you would not act to make known to PennDOT your representation of, or work for, the Firm or otherwise engage in any activity that would constitute prohibited representation of the Firm before PennDOT. With respect to your fourth question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from representing the Firm before any PennDOT Engineering District, including a PennDOT Engineering District that you had no relationship with while you were employed with PennDOT. Turning to your fifth question, you are advised that Section 1103(g) of the Ethics Act would not impose any restrictions upon you with regard to soliciting PennDOT for work after March 2, 2027. 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