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HomeMy WebLinkAbout26-524 Bachman1� y 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 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 17, 2026 To the Requester: John M. Bachman Dear Mr. Bachman: 26-524 This responds to your letter dated March 17, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issue presented below: Issue: Facts: Whether the Public Official and Employee Ethics Act (`Ethics Act'), 65 Pa. C.S. § 1101 et sec.., would impose restrictions upon you with regard to performing work for a new employer following termination of your employment as a Highway Design Manager with the Pennsylvania Department of Transportation ("PennDOT"). Brief,4nswer: 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 a new employer --- before your "former governmental body," PennDOT. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. On April 10, 2026, you retired from your employment as a Highway Design Manager with PenrrDOT in the Highway Design Unit of Engineering District 8-0, in which capacity you served as a Senior Project Manager. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. Bachman, 26-524 April 17, 2026 Page 2 Although you worked exclusively within Engineering District 8-0 throughout your career with PennDOT, you interacted with numerous engineering consulting firms that hold existing contracts with both PennDOT and the Pennsylvania Turnpike Commission. Now that you are retired, you might seek employment with an engineering consulting firm that performs work for PennDOT or the Pennsylvania Turnpike Commission, The firms that you might join could hold existing engineering agreements/contracts with PennDOT in various Engineering Districts, including Engineering District 8-0, for the provision of services such as Consultant Management Project Management ("CMPM"), preliminary engineering and final design, and construction management and inspection. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you 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 provide CMPM services for an engineering consulting firm on existing agreements/contracts in Engineering District 8-0 or other Engineering Districts, and if so, whether you would be permitted to attend meetings involving PennDOT personnel; (2) Whether you would be permitted to provide CMPM services for an engineering consulting firm on new agreements/contracts in Engineering District 8-0 or other Engineering Districts, and if so, whether you would be permitted to attend meetings involving PennDOT personnel; (3) Whether you would be permitted to perform design management services for an engineering consulting firm on existing contracts in Engineering Districts other than Engineering District 8-0; (4) Whether you would be permitted to perform work on existing agreements/contracts that are not with the Highway Design Unit of Engineering District 8-0 and have your name appear on invoices for the work performed; (5) How is your "unit" defined for the purposes of invoice restrictions, and would this definition apply solely to Engineering District 8-0 or also to other Engineering Districts; (6) Whether you would be permitted to perform work for an engineering consulting firm on existing or new agreements with the Pennsylvania Turnpike Commission, and if so, whether your name could appear on invoices for such work; and (7) Whether you would be permitted to attend the picnic/award presentation and the Christmas party hosted by Engineering District 8-0. Discussion: Bachman, 26-524 April 17, 2026 Page 3 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. 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 reMsent 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. Bachman, 26-524 Apri] 17, 2026 Page 4 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; (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 terinination 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 goverrunental 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: Bachman, 26-524 April 17, 2026 Page 5 In your former capacity as a Highway Design Manager with PennDOT in the Highway Design Unit of Engineering District 8-0, 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 I I03(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 8-0. 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 a new employer — before PennDOT. The restrictions as to representation outlined above must be followed. Your specific questions shall now be addressed. With respect to your first two questions, you are advised as follows. During the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from providing CMPM services for an engineering consulting firm on existing or new agreements/contracts in Engineering District 8-0 or other Engineering Districts unless you would be able to do so without engaging in any activity that would constitute prohibited representation of the engineering consulting firm before PennDOT as set forth above. Section 1103(g) would prohibit you from attending any meetings involving PennDOT personnel as engaging in that activity would constitute prohibited representation of your new employer before PennDOT. In response to your third question, you are advised that Section 1103(g) would prohibit you from performing design management services for an engineering consulting firm on existing contracts in Engineering Districts other than Engineering District 8-0 unless you would be able to do so without engaging in prohibited representation of the engineering consulting firm before PennDOT, With respect to your fourth and fifth questions, you are advised as follows. For purposes of the Commission's holding in Abrams/Webster, sutra, the "unit" where you worked would not be limited to the Highway Design Unit of Engineering District 8-0 but rather would be Engineering District 8-0 in its entirety. During the one-year period of applicability of Section 1103(g), as a general rule, your name could not be listed on invoices submitted to PcnnDOT by an engineering consulting firm. However, if you would perform work for an engineering consulting firm on PennDOT contracts that existed before you terminated your employment with PennDOT, and if those contracts would not involve the "unit" where you worked, specifically En_ing eering District 88-00, your name could appear on routine invoices submitted to PennDOT as to those particular pre- existing contracts if required by the regulations of PennDOT. Id. As to your sixth question, you are advised that Section 1103(g) would not prohibit you from performing work for an engineering consulting firm on existing or new agreements/contracts with the Pennsylvania Turnpike Commission or having your name appear on invoices for those agreements/contracts. Turning to your seventh question, you are advised that Section I I03(g) would not prohibit you from attending the picnic/award presentation or the Christmas party hosted by Engineering Bachman, 26-524 April 17, 2026 Page 6 District 8-0 subject to the condition that in so doing, you would not act to make known your representation of, or work for, a new employer. 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 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 (717-797-0806). 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