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HomeMy WebLinkAbout10-553 Saylor ADVICE OF COUNSEL March 12, 2010 L. Douglas Saylor 202 Fountain Road Snow Shoe, PA 16874 10-553 Dear Mr. Saylor: This responds to your letter received January 8, 2010, and your email of January 20, 2010, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any restrictions upon employment of a Mining Permit and Compliance Specialist following termination of service with the Pennsylvania Department of Environmental Protection. 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 state that you were recently furloughed from your employment as a Mining Permit and Compliance Specialist with the Pennsylvania Department of Environmental Protection (“DEP”). Copies of your official DEP position description and the job classification specifications for the position of Mining Permit and Compliance Specialist (job code 75920) have been obtained and are incorporated herein by reference. You state that as a Commonwealth employee, you were involved with the following organizations (“the Organizations”): (1) the Council for the Reclamation of Disturbed Lands in Pennsylvania, for which you served as Chairman; and (2) the Appalachian Region Reforestation Initiative, for which you served as the Pennsylvania core team member. You state that you have found employment with an environmental company that has dealings with DEP. You state that you are also participating in a grant proposal for a federal research grant (“the Grant”) to conduct research on mine reclamation. You seek guidance as to whether you would be subject to the restrictions of Section 1103(g) of the Ethics Act based upon your previous employment with DEP. You pose the following five additional, specific questions to be addressed if you would be subject to the restrictions of Section 1103(g) of the Ethics Act: Saylor, 10-553 March 12, 2010 Page 2 1. Whether the restrictions imposed upon you by Section 1103(g) of the Ethics Act would apply as to DEP in its entirety or only as to the office in which you worked; 2. Whether you would be permitted to sit in on meetings with your new employer where DEP personnel may be present as long as you would provide no input; 3. Whether you would be permitted to do file searches of existing permits or be present during routine DEP inspections; 4. Whether you would be permitted to ask your former supervisor for a letter of recommendation in support of the Grant; and 5. Whether you would be permitted to continue to be involved with the Organizations in any capacity. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In the former capacity as a Mining Permit and Compliance Specialist for DEP, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Fliss, Advice 00-505. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of employment with DEP, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. 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 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. Saylor, 10-553 March 12, 2010 Page 3 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/public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89-005. Listing one’s name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official/public employee on invoices submitted by his 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 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 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 Saylor, 10-553 March 12, 2010 Page 4 person regarding that person’s appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Section 1103(g) only restricts the former public official/public employee with regard to representation before his former governmental body. The former public official/ public employee is not restricted as to representation before other agencies or entities. However, the “governmental body with which a public official/public employee is or has been associated” is not limited to the particular subdivision of the agency or other governmental body where the public official/public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, Opinion 90-009-R. The governmental body with which you are deemed to have been associated upon termination of public service is DEP in its entirety. Therefore, for the first year following termination of your employment with DEP, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person,” including yourself or a new employer, before DEP with promised or actual compensation. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be considered. Your first specific question has been addressed above. In response to your second specific question, you are advised as follows. During the one-year period of applicability of Section 1103(g) of the Ethics Act, you would generally be permitted to attend meetings that would be open to the public as long as your role would not go beyond that of a general observer. However, to the extent you would attend a meeting as a representative of your new employer, you would be engaging in “representation” before the attendees of such a meeting. If employee(s) of DEP would be in attendance at such a meeting, it would be difficult if not impossible, as a practical matter, for you to attend the meeting without running afoul of Section 1103(g) of the Ethics Act. Cf., Munley, Advice 07-593. With regard to your third specific question, you are advised that it would appear to be impossible as a practical matter for you to do file searches of existing permits or be present during routine DEP inspections without running afoul of Section 1103(g) of the Ethics Act. In engaging in such activity(ies), it would seem inevitable that you would reveal to your former governmental body (DEP) your employment with your new employer. Cf., Davis, Advice 03-611. In response to your fourth specific question, you are advised that Section 1103(g) of the Ethics Act would prohibit you from asking your former supervisor for a letter of recommendation in support of the Grant as such activity would necessarily involve prohibited representation before your former governmental body. As to your fifth specific question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from continuing to be involved with the Organizations subject to the condition that in so doing, you would not engage in any activity(ies) that would constitute “representation” of a “person” before DEP with promised or actual compensation. 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 Saylor, 10-553 March 12, 2010 Page 5 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 or give 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 the former capacity as a Mining Permit and Compliance 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, 51 Pa. Code § 11.1 et seq. Upon termination of Commonwealth employment, you became a "former public employee" subject to the restrictions of Section 1103(g) of the Ethics Act. The former governmental body is DEP in its entirety. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person,” including yourself or a new employer, before DEP with promised or actual compensation. The restrictions as to representation outlined above must be followed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 (717-787-0806). 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