HomeMy WebLinkAbout05-005 ReeseI. ISSUE:
OPINION OF THE COMMISSION
Dear Ms. Reese and Ms. Gilliland:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
Reverend Scott Pilarz
DATE DECIDED: 6/7/05
DATE MAILED: 6/17/05
05 -005
Karen A. Reese, P.E.
Susan K. Gilliland
1703 Hannah Furnace Road
Phillipsburg, PA 16866
Re: Former Public Employee; Section 1103(g); Senior Civil Engineer Supervisor
Transportation; Highway Draftsman Designer; PennDOT; District 2 -0; Appeal of
Advice.
This Opinion is issued in response to the appeal of Advice of Counsel, 04 -609,
which was issued on December 23, 2004.
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., would impose any prohibition or restrictions upon a Senior Civil Engineer
Supervisor Transportation or a Highway Draftsman Designer following termination of
service with the Commonwealth of Pennsylvania, Department of Transportation
( "PennDOT ").
II. FACTUAL BASIS FOR DETERMINATION:
By faxed letter dated January 20, 2005, received January 21, 2005, you appealed
Advice of Counsel, 04 -609 issued December 23, 2004.
Your initial advisory request presented facts that were summarized in the Advice of
Counsel as follows:
Reese /Gilliland, 05 -005
June 17, 2005
Page 2
Karen A. Reese, P.E. is employed as a Senior Civil
Engineer Supervisor Transportation with PennDOT, District 2-
0, a position that Ms. Reese has held for approximately four
years. Although Ms. Reese has been a registered
professional engineer in Pennsylvania since September 1999,
her registration is not a requirement of her current position,
and Ms. Reese does not utilize her registration in the
performance of her job duties at PennDOT.
Susan K. Gilliland is employed as a Highway Draftsman
Designer with PennDOT, District 2 -0. Ms. Gilliland
occasionally performs computer drafting, but primarily
researches rights -of -way for projects being designed by
PennDOT's in -house design staff. Ms. Gilliland is also
responsible for maintaining all of the District's record plans for
completed construction projects.
Your future plans include forming a legal corporation
operating as a Women Owned Business /Disadvantaged
Business Enterprise ( "WBE /DBE ") in Pennsylvania. The
proposed corporation would provide engineering and
inspection services to clients both in and out of the
transportation arena.
You have submitted copies of both of your job
descriptions, as well as copies of the organizational charts for
the Design Division and Plans Unit of Engineering District 2 -0,
which documents are incorporated herein by reference.
Based upon the foregoing facts, you seek a
determination regarding the restrictions of the Ethics Act that
would apply to you should you terminate your employment with
PennDOT.
Reese /Gilliland, Advice of Counsel 04 -609 at 1 -2.
Advice of Counsel, 04 -609 determined that in your respective positions as a Senior
Civil Engineer Supervisor Transportation and as a Highway Draftsman Designer for
PennDOT, District 2 -0, each of you would be considered a "public employee" subject to the
Ethics Act and Regulations of this Commission, 51 Pa. Code § 11.1 et seq., and that upon
termination of service with PennDOT, each of you would become a "former public
employee" subject to Section 1103(g) of the Ethics Act. The Advice of Counsel further
determined that your former governmental body would be PennDOT in its entirety
including, but not limited to, Engineering District 2 -0. The Advice of Counsel set forth the
restrictions of Section 1103(g) of the Ethics Act and additionally stated:
Having set forth the restrictions of Section 1103(g) of
the Ethics Act, you are advised that although the Ethics Act
would not restrict you from forming a corporation that would
provide engineering and inspection services to clients both in
and out of the transportation arena, Section 1103(g) would
restrict your conduct to the extent that such conduct would
constitute prohibited "representation" before PennDOT during
the first year following termination of employment with
PennDOT.
Reese /Gilliland, Advice of Counsel 04 -609 at 4.
Reese /Gilliland, 05 -005
June 17, 2005
Page 3
In your letter appealing Advice of Counsel, 04 -609, you proffer the following
arguments:
In addition to the Advice appearing to be somewhat
contradicting in itself, it appears that "power ", as referred to in
the Advice, was assumed by the Commission in the case of
both positions above the actual responsibilities of either party
involved.
Reese /Gilliland Appeal Letter of January 20, 2005.
In a faxed transmission received by this Commission on February 23, 2005, Ms.
Reese further stated:
Our contention to the previous Advice 04 -609 is to the level of
authority assumed by the Counsel regarding our current level
of employment with the Department of Transportation. It is our
intent to better inform the Counsel of the job duties as we are
currently assigned and demonstrate that we have not
participated in or have the authority to act in "greater than a de
minimis nature" on behalf of PennDOT or the District.
We also seek clarification of Abrams /Webster, Opinion 95-
011, as it would pertain to any restrictions placed on us, which
from interpretation, would exclude us only from work within our
respective units in District 2 -0.
Reese letter of February 23, 2005.
By letters dated March 9, 2005, you were both notified of the date, time and location
of the (first) public meeting at which your request would be considered.
At the public meeting on March 24, 2005, you both appeared and offered
commentary, which may be fairly summarized as follows.
Ms. Reese opined that Ms. Gilliland's duties do not meet the definition of "public
employee" for the stated reasons that Ms. Gilliland does not participate in contracting,
financial planning, or procurement activities. As for herself, Ms. Reese stated: that she
had very minimal participation in those areas; that in her opinion, her activities are not
greater than de minimis because economic values are determined by the PennDOT offices
in Harrisburg, not the District offices; that her review has been purely on a technical basis
on two contracts in the past four years that she has been a Project Manger; that she does
not participate in any statewide planning; that her participation has not been "non -
ministerial action" because it is based upon Central Office guidelines; and that her review
is merely technical and not on any economic basis. Ms. Reese stated that she is a
licensed engineer but does not use her license in her current PennDOT position.
Ms. Gilliland stated that in her position, she has no power whatsoever, and that she
provides and organizes records of the Plans Unit.
Ms. Reese stated that neither of you can afford to quit work for a year and be
restricted based upon what you know how to do.
Ms. Reese claimed that while the restrictions of Advice of Counsel, 04 -609 were
Reese /Gilliland, 05 -005
June 17, 2005
Page 4
statewide, the restrictions of a prior Advice, specifically Kunselman, Advice 99 -631, were
assumed to be just as to the former employee's District.
This Commission continued review of this appeal of Advice of Counsel, 04 -609, to
the Commission's next public meeting.
By letters dated April 21, 2005, you were both notified of the date, time and location
of the (second) public meeting at which your request would be considered.
At the public meeting on June 7, 2005, Ms. Reese appeared and offered additional
commentary, which may be fairly summarized as follows.
Ms. Reese argued that neither of you falls within the definition of "public employee"
as set forth in the Ethics Act. Ms. Reese reiterated arguments that Ms. Gilliland does not
participate in any kind of financial or economic activities and that her duties are drafting,
handling microfilm and final plans and the recording of same, and doing right -of -way
research for the in -house designs of the District Office. As for herself, Ms. Reese
acknowledged that she is a Project Manager but stated that her input is on a
technical /ministerial level and is based upon guidance /direction from other sources such
as the Central Office Consultant Agreement Division, the District Engineer for Design, the
Assistant District Engineer for Design, design manuals, and codes. Ms. Reese stated that
in a few instances, she has assisted in selecting a consultant, but that for the majority of
her work there are open -ended agreements involving consultants selected by other
individuals.
Ms. Reese noted that in her position with PennDOT, she files Statements of
Financial Interests. She stated that some of her peers have questioned whether the filing
requirement applies. She further stated that the PennDOT Human Resource office has not
instructed Ms. Gilliland to file Statements of Financial Interests.
Ms. Reese stated that the restrictions set forth in the Advice of Counsel would
preclude you from pursuing your plans for starting a Women Owned
Business /Disadvantaged Business Enterprise ( "WBE /DBE ") providing engineering and
inspection services in Pennsylvania. Ms. Reese stated that 90% of the work that would be
available to her as a civil engineer would have to go through PennDOT. She stated that
neither of you would be in a position to be without income for a year, and that she did not
know whether there would be any other individual not employed by PennDOT whom you
would be willing to bring into the business.
Ms. Reese argued that while the restrictions of Advice of Counsel, 04 -609 were
statewide, the restrictions of Kunselman, Advice 99 -631, clarified by Kunselman, Advice
99- 631 -C, were assumed to be just as to the former employee's District. Commission staff
present at the meeting disagreed with Ms. Reese's characterization of the said Advices.
Staff noted that both Advices applied the Section 3(g) (now Section 1103(g)) restrictions so
as to restrict Mr. Kunselman as to all of PennDOT. Staff further noted that Ms. Reese
appeared to misunderstand Abrams /Webster, Opinion 95 -011, which was cited and
explained in Kunselman, Advice 99 -631 and further referenced in Kunselman, Advice 99-
631 -C. Staff stated that Abrams /Webster, Opinion 95 -011 established a narrow exception
pertaining solely to billing. Staff noted that this exception - -which under certain narrow
conditions detailed below, permits a former public employee's name to appear on routine
bills submitted to the former governmental body - -does not permit the former public
employee to otherwise represent a person before the former governmental body with
promised or actual compensation, such as with respect to attempting to get a contract or
resolve issues.
The submitted copies of both of your job descriptions and the organizational charts
for the Design Division and Plans Unit of Engineering District 2 -0 are incorporated herein
Reese /Gilliland, 05 -005
June 17, 2005
Page 5
by reference.
We take administrative notice of the job classification specifications for both of your
positions, which are also incorporated herein by reference.
III. 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, this 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.
Our review of this matter is de novo (Clarke, Opinion 04 -012; Spear, Opinion 04-
011): "De novo review entails, as the term suggests, full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and redecides the
case." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations
omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818
A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re
Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946).
We shall begin our analysis by considering whether you are "public employees"
subject to the Ethics Act and the Regulations of this Commission.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible for
taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature on
the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of this Commission similarly define the term "public employee"
and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
Reese /Gilliland, 05 -005
June 17, 2005
Page 6
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility in
the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or stop
recommendations from being sent to the person or body with
the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions affect
organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs or
heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary- treasurers acting
as managers, police chiefs, chief clerks, chief purchasing agents,
grant and contract managers, administrative officers, housing and
building inspectors, investigators, auditors, sewer enforcement
officers and zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
Reese /Gilliland, 05 -005
June 17, 2005
Page 7
(G) Persons who report directly to heads of executive,
legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally not
considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Ministerial action." An action that a person performs
in a prescribed manner in obedience to the mandate of legal
authority, without regard to or the exercise of the person's own
judgment as to the desirability of the action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of the
action taken.
65 Pa. C. S. § 1102.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position itself.
Typically, the powers and duties of the position are established by objective sources that
define the position, such as the job description, job classification specifications, and
organizational chart. The objective test considers what an individual has the authority to do
in a given position based upon these objective sources, rather than the variable functions
that the individual may actually perform in the position. See, Phillips v. State Ethics
Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04 -002; Shienvold,
Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court of Pennsylvania has
specifically considered and approved this Commission's objective test and has directed
that coverage under the Ethics Act be construed broadly and that exclusions under the
Ethics Act be construed narrowly. See, Phillips, supra.
In applying the objective test in the instant matter, we conclude that each of you is a
public employee subject to the Ethics Act and Regulations of this Commission.
Regardless of Ms. Reese's claims that she does not actually use her engineering
license in her current position, and regardless of Ms. Reese's claims as to the nature of
her actual duties, Ms. Reese's position is a supervisory engineering position. This
Commission's own Regulations recognize that governmental engineers are generally
considered public employees subject to the Ethics Act. 51 Pa. Code § 11.1 (definition,
"public employee," subparagraph (iv)(D). Indeed, lower - level, non - supervisory civil
engineers with PennDOT —such as the requester in the Abrams /Webster Opinion
Reese /Gilliland, 05 -005
June 17, 2005
Page 8
discussed herein —have been found by the Commission to be within the definition of
"public employee" and therefore subject to the Ethics Act. Abrams /Webster, Opinion 95-
011
Ms. Reese is a public employee subject to the Ethics Act and Regulations of this
Commission because the objective sources defining her position (job classification
specifications and job description) establish that as a Senior Civil Engineer Supervisor
Transportation, she has the authority, inter alia, to do the following:
(Per Job Classification Specifications)
• Perform advanced professional supervisory civil engineering work;
• Supervise engineers, technicians, and inspectors;
• Supervise a specialized engineering district function such as planning and
programming, transportation systems management, pavement evaluation, grade
crossing, maintenance project control coordination and safety design liaison;
• Plan and organize work, assign work, determine work priority, and review work
performance;
• Participate in design development;
• Supervise project proposal or estimate preparation;
• Monitor the preparation of construction plans by consultant engineers;
• Supervise the review of designs of consultant work;
• Supervise and perform preliminary engineering studies, location or foundation
investigations, the review of plans and specifications or serve as construction
engineer supervisor on large and complex projects;
• Check contractor work for compliance with contract stipulations and specifications;
• Make changes in design as indicated by on -site conditions;
• Estimate amount of work completed for purposes of making payments to
contractors;
• Perform assignments that require the independent selection of courses of action for
which well established guidelines are not available;
(Per Job Description)
• Review and monitor project design efforts to meet current criteria and standards,
the scope of the projects and reasonable programmed costs;
• Supervise other technical personnel in the Engineering District 2 -0 office;
• Serve as a member of the District Project Development Section;
• Develop action plans as needed;
• Manage minor to moderately complex projects, with responsibilities including all
aspects of the Project Development process;
• Assign and review work through evaluation of the results obtained;
• Resolve unusual problems independently;
• Organize, direct and plan the strategic efforts of highway design activities;
• Provide direction and allocation of necessary administrative and technical support,
human and budgetary resources; and
• Recommend contracting for services or special skills not readily available and
request goods and services toward that end.
The first portion of the statutory definition of "public employee" includes individuals
with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. §
1102. Likewise, the regulatory criteria for determining status as a public employee, as set
forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only individuals with
authority to make final decisions but also individuals with authority to forward or stop
recommendations from being sent to final decision - makers; individuals who prepare or
supervise the preparation of final recommendations; and individuals who make final
Reese /Gilliland, 05 -005
June 17, 2005
Page 9
technical recommendations.
Based upon the above, we find that Ms. Reese's authority includes responsibility for
taking or recommending official action of a nonministerial nature with regard to categories
(1), (4) and (5) of the Ethics Act's definition of "public employee," specifically, "contracting
or procurement," "inspecting, licensing, regulating or auditing any person" and any other
activity where the official action has an economic impact of greater than a de minimis
nature on the interests of any person." 65 Pa.C.S. § 1102.
Likewise, Ms. Gilliland is a public employee subject to the Ethics Act and
Regulations of this Commission because the objective sources defining her position (job
classification specifications and job description) establish that as a Highway Draftsman
Designer, she has the authority, inter alia, to do the following:
(Per Job Classification Specifications)
• Function as a lead worker over lower level technicians;
• Perform design for less complex highway projects;
• Prepare complete sets of plans for less complex highway projects;
• Independently perform all drafting and detailing work associated with the
development and preparation of highway plans from preliminary sketches to final
detailed working plans, including such items as layouts and materials;
• Prepare proposals for projects for contract construction work;
• Independently prepare all plans from preliminary sketches to final working plans for
highway construction;
(Per Job Description)
• Design, develop and review highway construction, right -of -way, traffic control and
erosion control plans and to perform plan revisions; and
• Supervise student employees of the Department.
Based upon the above, we find that Ms. Gilliland's authority includes responsibility
for taking or recommending official action of a nonministerial nature with regard to category
(5) of the Ethics Act's definition of "public employee," specifically, any other activity where
the official action has an economic impact of greater than a de minimis nature on the
interests of any person." 65 Pa.C.S. § 1102.
As noted above, the objective sources defining your positions (job classification
specifications and job description) are dispositive of your status under the Ethics Act —not
claims as to actual duties performed.
Having determined that each of you is a public employee subject to the Ethics Act, it
necessarily follows that upon termination of service with PennDOT, each of you would
become a "former public employee" subject to Section 1103(g) of the Ethics Act.
We agree with the Advice of Counsel that your former governmental body would be
PennDOT in its entirety including, but not limited to, Engineering District 2 -0 and particular
units within that District in which you serve. Your arguments seeking to limit the impact of
the Section 1103(g) restrictions to the particular units within District 2 -0 in which you work
rather than as to PennDOT in its entirety have no merit for the following reasons.
Since the enactment of Act 9 of 1989, the Ethics Act has defined the term
"governmental body with which a public official or public employee is or has been
associated" to include the entire body:
Reese /Gilliland, 05 -005
June 17, 2005
Page 10
"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 P.S. § 402, now 65 Pa.C.S. § 1102 (Emphasis added).
The legislative debate as to Act 9 of 1989 clearly establishes the specific intent of
the General Assembly that the restrictions of Section 3(g), now Section 1103(g), apply as
to the entire governmental body:
We sought to make particularly clear that when we are
prohibiting for 1 year that revolving -door kind of conduct, we
are dealing not only with a particular subdivision of an agency
or a local government but the entire unit, and my language
simply makes it clear in the definition of "governmental body"
that we are including subdivisions and offices within that entity.
Legislative Journal of House, 1989 Session, No. 15 at 290, 291.
Since Act 9 of 1989 was enacted, based upon the above statutory definition and
legislative debate, this Commission has consistently determined that a public
official's /public employee's former governmental body includes the entire body, not just the
district or other unit served. The above legislative debate has been routinely cited in
Advices of Counsel and Commission Opinions, including the Advice issued to you.
(Reese /Gilliland, Advice of Counsel, 04 -609 at 4).
You have misconstrued the holdings in Abrams /Webster, supra, and Kunselman,
supra. Neither the Abrams /Webster Opinion nor the Kunselman Advice limited the
application of the Section 1103(g) restrictions to anything less than the entire former
governmental body. To the contrary, both Abrams /Webster, Opinion 95 -011 and
Kunselman, Advice 99 -631 determined that the former governmental body would be
PennDOT in its entirety, including but not limited to the particular District served (Opinion
95 -011 at 11 -12; Advice 99 -631 at 3 -4).
Abrams /Webster, Opinion 95 -011 further held that if 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 submitted to his former governmental body if
required by the regulations of the agency. Abrams /Webster, supra, at 11 -12. But that
holding did not limit the overall application of Section 1103(g) to anything less than the
entire former governmental body, as you have argued.
The aforesaid holding in Abrams /Webster, Opinion 95 -011 was accurately
characterized in the Kunselman Advice cited by Ms. Reese as well as in the very Advice
issued to both of you. (Kunselman, Advice 99 -631 at 3; Reese /Gilliland, Advice of
Counsel, 04 -609 at 3.)
Additionally, Kunselman, Advice 99 -631 -C illustrated the Abrams /Webster holding
and reiterated that Mr. Kunselman could not engage in prohibited representation before
PennDOT:
As for your first question, you would not be prohibited
from working on pre- existing contracts involving PennDOT
projects provided that in performing such services, you would
Reese /Gilliland, 05 -005
June 17, 2005
Page 11
not engage in prohibited representation before PennDOT as
set forth in Kunselman, Advice, 99 -631. The submission of
your name on routine invoices to PennDOT would transgress
Section 1103(g) of the Ethics act, except where the pre-
existing contracts would not involve the PennDOT unit where
you worked, and PennDOT regulations would require the
inclusion of your name on routine invoices. See, Kunselman,
at 3.
As for your second and third questions, you would not
be prohibited from working on pre- existing or existing contracts
involving local municipalities that would utilize "Billion Dollar
Bridge Program" funds, provided that in performing such
services, no prohibited contacts would occur as to PennDOT
and no written materials containing your name would be
submitted to PennDOT, except within the narrow and limited
extent permitted by Webster, as set forth in Kunselman,
Advice, 99 -631. Section 1103(g) of the Ethics Act would
prohibit you from including your name on invoices submitted to
such municipalities if those invoices would be reviewed by
PennDOT.
Kunselman, Advice 99 -631 -C at 2 (Some emphasis added).
It is clear that neither the Abrams /Webster Opinion nor the Kunselman Advices
limited the overall application of Section 1103(g) to anything less than the entire former
governmental body. We reject your arguments to the contrary.
We further determine that Advice of Counsel, 04 -609 accurately apprised you of the
nature of the Section 1103(g) restrictions and of certain important Commission precedents
pertaining to those Sections. Accordingly, we adopt and incorporate herein by reference
the Advice's recitation of the Section 1103(g) restrictions.
As for your claims that the restrictions of the Advice of Counsel would preclude you
from going into business as planned, this Commission does not have the legal authority to
carve out exceptions that do not have a statutory basis. McCain, Opinion 02 -009; Yatron.
Opinion 02 -008; Rubenstein, Opinion 01 -007; Ziegler, Opinion 98 -001; Long, Opinions 97-
010 and 97- 010 -R; Richardson, Opinion 93 -006.
Based upon the above analysis, we deny the appeal and affirm Reese /Gilliland,
Advice of Counsel 04 -609.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
IV. CONCLUSION:
A Senior Civil Engineer Supervisor Transportation and a Highway Draftsman
Designer for PennDOT, District 2 -0, would each be considered a "public employee" subject
to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act ") and
Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination
of service with PennDOT, the Senior Civil Engineer Supervisor Transportation and the
Highway Draftsman Designer would each become a "former public employee" subject to
Section 1103(g) of the Ethics Act. The former governmental body would be PennDOT in
its entirety including, but not limited to, Engineering District 2 -0 and units therein. Advice
of Counsel 04 -609 is affirmed.
The propriety of the proposed conduct has only been addressed under the Ethics
Reese /Gilliland, 05 -005
June 17, 2005
Page 12
Act.
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair