HomeMy WebLinkAbout08-593 BrenchleyJeffrey J. Brenchley
1226 Maple Street
Bloomsburg, PA 17815
Dear Mr. Brenchley:
ADVICE OF COUNSEL
November 4, 2008
08 -593
This responds to your letter dated September 30, 2008, by which you requested
an advisory from the Pennsylvania State Ethics Commission.
Issue: Whether as an Environmental Engineering Specialist with the
Pennsylvania Department of Environmental Protection ( "DEP "), you would be
considered a "public employee" subject to the Public Official and Employee Ethics Act
("Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics
Commission, and upon leaving Commonwealth employment, the restrictions of Section
1103(g) of the Ethics Act pertaining to former public officials /public employees.
Facts: You request an advisory from the Pennsylvania State Ethics Commission
regarding the post - employment restrictions of the Ethics Act. You have submitted facts
that may be fairly summarized as follows.
You are currently employed with DEP as an Environmental Engineering
Specialist in the Water Management Program of DEP's Northcentral Regional Office.
You have served in your current position for approximately six months. You state that
you are responsible for reviewing NPDES and Water Quality Management Permit
Applications.
You state that your position is under the direct supervision of the Environmental
Engineering Manager. The Environmental Engineering Manager and the Environmental
Program Manager are responsible for reviewing your work, and formal permit actions
are not made without their approval.
You have submitted copies of your official DEP job description, the job
classification specifications for the position of Environmental Engineering Specialist (job
code 14520), and an organizational chart for the Northcentral Region Water
Management Program, which documents are incorporated herein by reference.
Per your official DEP job description, your duties and responsibilities include the
following:
Brenchley, 08 -593
November 4, 2008
Page 2
• Reviewing and taking appropriate action on NPDES permit applications for the
discharge of treated sewage and industrial wastewater and other discharges,
with such review including, inter alia, analyzing stream and discharge data,
applying minimum state and federal effluent standards, preparing permit
documents and related reports, establishing effluent limits, and monitoring
requirements;
• Preparing preliminary effluent limit determinations for proposed new sewage
discharges (in coordination with Act 537 planning) and for proposed industrial
discharges;
• Reviewing Water Quality Management Permit Applications (which include
technical plans, specifications, modular reports, and associated engineering
reports) for sewage collection and treatment facilities, industrial waste treatment
facilities, and groundwater discharges, to assure the suitability, adequacy, and
operating reliability of the proposed works to prevent pollution of the waters of the
Commonwealth;
• Writing technical reports pertaining to the applications and recommending
issuance or refusal of a permit to the Environmental Engineer Manager and
regional Environmental Program Manager based on the review of the application;
• Meeting and corresponding with consulting engineers and applicants for pre -
application conferences or to resolve deficiencies in their specific cases;
• Making field inspections of recently constructed pollution control facilities to
assure conformance with the plans and specifications approved in the permit,
and making inspections of existing facilities and collecting samples as required
by special cases or emergency situations;
• Consulting on engineering and cost considerations in sewerage based municipal
plan projects, special protection watershed projects, and compliance related
projects;
• Participating in the review of selected permit applications for sewerage and
biosolids projects; and
• Managing projects seeking funding under the PennVEST and WPCRF programs,
with specific tasks including, inter alia: (1) reviewing and taking action on funding
applications, including but not limited to determining eligibility and cost
effectiveness; (2) reviewing and recommending to PennVEST construction
change orders and scope changes; and (3) conducting interim and final
construction inspections for compliance with design and safety standards, for
change order eligibility, and for overall project progress.
Job description, at 1 -3.
Per the job classification specifications under job code 14520, an Environmental
Engineering Specialist:
• Makes technical recommendations on the agency's approach to a particular
permit application, case or project, with final technical decisions to be made by a
professional engineer and /or program manager;
Brenchley, 08 -593
November 4, 2008
Page 3
• Performs professional environmental engineering work in the review of
applications for permits, plans or variances to determine if the proposed action
conforms to engineering standards and federal and state laws and regulations;
• Investigates complaints directed toward a facility, operation or landowner by
conducting site visits, interviewing individuals, performing engineering analyses
and preparing technical reports outlining findings and recommendations;
• Conducts field inspections to determine the compliance status or operational
efficiency of a permitted facility from an engineering standpoint, prepares
inspection reports to summarize observations, and recommends appropriate
action or adjustments;
• Conducts facility and project inspections during construction and after completion
to determine adherence to engineering design plans and specifications, to detect
deficiencies in materials, work methods or procedures, and to resolve problems
resulting from unusual site conditions;
• Participates in the development of the engineering components of a statewide
environmental regulatory program, including regulations, policies, standards,
procedures, methods and technical guidance, and participates in program
evaluations;
• Reviews and evaluates permit applications and makes technical
recommendations for agency action;
• Participates in the evaluation of more complex treatment facilities, such as
conventional filtration, membrane filtration, pilot studies, air stripping, and ion
exchange systems by participating in the engineering analysis of filter plant
performance evaluations and making technical recommendations for agency
action; and
• Conducts engineering services in the survey, design and evaluation of waterway
obstructions and wetlands restoration projects.
Job classification specifications, at 1 -2.
You have accepted an offer of employment as a Senior Environmental Engineer
with an industry in the Northcentral Region (hereinafter, the Company "). You state that
during your tenure with DEP, you have had no professional communication with the
Company and have not worked on any cases involving the Company.
DEP personnel regularly inspect the Company and meet with representatives of
the Company. You state that in your position with the Company, you will be responsible
for monitoring compliance with environmental regulations imposed by DEP. You further
state that your position will require making telephone calls to DEP.
Based upon the above submitted facts, you seek guidance as to whether you
would be considered a "public employee" as defined in the Ethics Act, such that you
would be subject to the restrictions of Section 1103(g) of the Ethics Act upon
termination of your Commonwealth employment.
You pose the following four additional, specific inquiries to be addressed if you
would be subject to the restrictions of Section 1103(g) of the Ethics Act:
Brenchley, 08 -593
November 4, 2008
Page 4
1. Whether you would be permitted to accompany a Company official and a
DEP inspector during an inspection of the Company, provided that you
would not communicate with the DEP inspector on behalf of the Company
or supply such inspector with any information on behalf of the Company;
2. Whether making a telephone call to DEP on behalf of the Company would
be considered to be engaging in "representation" of the Company, and
whether you would be permitted to sit in on a telephone call between a
Company official and DEP and add to the discussion, provided that you
would not make any decisions on behalf of the Company;
3. Whether the Ethics Act would permit you to accompany a Company
official during a meeting with DEP, where you would only be an observer
at the meeting; and
4. Whether the Ethics Act would permit you to verbally report to DEP non-
compliance with environmental regulations by the Company, where failure
to report such non - compliance could result in a violation of permit
conditions.
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 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.
In responding to your inquiry, the threshold question to be addressed is whether,
as an Environmental Engineering Specialist with DEP, you would be considered a
"public employee" subject to the Ethics Act.
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.
Brenchley, 08 -593
November 4, 2008
Page 5
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 the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
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.
Brenchley, 08 -593
November 4, 2008
Page 6
(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.
(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 persons 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
Brenchley, 08 -593
November 4, 2008
Page 7
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,
Philips 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.
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; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is
that, in your capacity as an Environmental Engineering Specialist with DEP, you would
be considered a "public employee" subject to the Ethics Act.
As an Environmental Engineering Specialist, you have the ability to take or
recommend official action with respect to subparagraphs (4) and (5) within the definition
of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the
following duties set forth in the job description and job classification specifications would
be sufficient to establish status as a "public employee" subject to the Ethics Act:
• Reviewing and taking appropriate action on NPDES permit applications for
the discharge of treated sewage and industrial wastewater and other
discharges, with such review including, inter alia, analyzing stream and
discharge data, applying minimum state and federal effluent standards,
preparing permit documents and related reports, establishing effluent limits,
and monitoring requirements;
• Reviewing Water Quality Management Permit Applications (which include
technical plans, specifications, modular reports, and associated engineering
reports) for sewage collection and treatment facilities, industrial waste
treatment facilities, and groundwater discharges, to assure the suitability,
adequacy, and operating reliability of the proposed works to prevent pollution
of the waters of the Commonwealth;
• Writing technical reports pertaining to the applications and recommending
issuance or refusal of a permit to the Environmental Engineer Manager and
regional Environmental Program Manager based on the review of the
application;
• Making field inspections of recently constructed pollution control facilities to
assure conformance with the plans and specifications approved in the
permit, and making inspections of existing facilities and collecting samples
as required by special cases or emergency situations;
• Managing projects seeking funding under the PennVEST and WPCRF
programs, with specific tasks including, inter alia: (1) reviewing and taking
action on funding applications, including but not limited to determining
eligibility and cost effectiveness; (2) reviewing and recommending to
Brenchley, 08 -593
November 4, 2008
Page 8
PennVEST construction change orders and scope changes; and (3)
conducting interim and final construction inspections for compliance with
design and safety standards, for change order eligibility, and for overall
project progress;
• Making technical recommendations on the agency's approach to a particular
permit application, case or project, with final technical decisions to be made
by a professional engineer and /or program manager;
• Performing professional environmental engineering work in the review of
applications for permits, plans or variances to determine if the proposed
action conforms to engineering standards and federal and state laws and
regulations;
• Investigating complaints directed toward a facility, operation or landowner by
conducting site visits, interviewing individuals, performing engineering
analyses and preparing technical reports outlining findings and
recommendations;
• Conducting field inspections to determine the compliance status or
operational efficiency of a permitted facility from an engineering standpoint,
preparing inspection reports to summarize observations, and recommending
appropriate action or adjustments;
• Conducting facility and project inspections during construction and after
completion to determine adherence to engineering design plans and
specifications, to detect deficiencies in materials, work methods or
procedures, and to resolve problems resulting from unusual site conditions;
• Participating in the development of the engineering components of a
statewide environmental regulatory program, including regulations, policies,
standards, procedures, methods and technical guidance, and participating in
program evaluations;
• Reviewing and evaluating permit applications and making technical
recommendations for agency action;
• Participating in the evaluation of more complex treatment facilities, such as
conventional filtration, membrane filtration, pilot studies, air stripping, and ion
exchange systems by participating in the engineering analysis of filter plant
performance evaluations and making technical recommendations for agency
action; and
• Conducting engineering services in the survey, design and evaluation of
waterway obstructions and wetlands restoration projects.
The foregoing authority would also meet the criteria for determining your status
as a public employee under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii).
Consequently, upon termination of public service, you would become a "former
public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) of the Ethics Act does not prohibit a former public
official /public employee from accepting a position of employment, it does restrict the
Brenchley, 08 -593
November 4, 2008
Page 9
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 represent 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.
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 "representation" 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 /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 new employer to the former governmental
Brenchley, 08 -593
November 4, 2008
Page 10
body, even though the invoices pertain to a contract that existed prior to termination of
public service, 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 ublic
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 /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.
The governmental body with which you would be deemed to have been
associated upon termination of public service would be DEP in its entirety, including but
not limited to the Northcentral Regional Office. Therefore, for the first year after
termination of your employment with DEP, Section 1103(g) of the Ethics Act would
apply and restrict "representation" of "persons" before DEP.
Turning to your specific inquiries, you are advised as follows.
In response to your first specific inquiry, you are advised that Section 1103(g) of
the Ethics Act would prohibit you from accompanying a Company official and a DEP
inspector during an inspection of the Company, as such activity would necessarily
involve prohibited representation of the Company before your former governmental
body regardless of whether you would communicate with the DEP inspector on behalf of
the Company or provide such inspector with any information on behalf of the Company.
With regard to your second specific inquiry, you are advised that in general,
making a telephone call to DEP on behalf of the Company would constitute prohibited
"representation" before DEP. You are further advised that Section 1103(g) of the Ethics
Act would prohibit you from sitting in on a telephone call between a Company official
and DEP where such activity would involve prohibited representation before DEP,
including but not limited to participating in the discussion.
In response to your third and fourth specific inquiries, you are advised that
Section 1103(g) of the Ethics Act would prohibit you from accompanying a Company
official during a meeting with DEP or acting on behalf of the Company to verbally report
to DEP non - compliance by the Company with environmental regulations, as such
activity(ies) would necessarily involve prohibited representation of the Company before
your former governmental body.
Brenchley, 08 -593
November 4, 2008
Page 11
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a)
of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the
Ethics Act provide in part that no person shall offer to a public official /public employee
and no public official /public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
official /public employee would be influenced thereby. Reference is made to these
provisions of the law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the question presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code
of Conduct.
Conclusion: In your capacity as an Environmental Engineering Specialist with
the Pennsylvania Department of Environmental Protection ( "DEP "), you would be
considered a "public employee" subject to the Public Official and Employee Ethics Act
( "Ethics Act "). Upon termination of employment with DEP, you would become a "former
public employee' subject to Section 1103(g) of the Ethics Act. The former governmental
body would be DEP in its entirety. Section 1103(g) of the Ethics Act would restrict you
from engaging in any activity that would constitute prohibited representation before DEP
for one year following termination of employment with DEP. The restrictions as to
representation outlined above must be followed. The propriety of the proposed conduct
has only been addressed under the Ethics Act.
Pursuant to Section 1107(11), 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.
Sincerely,
Robin M. Hittie
Chief Counsel