HomeMy WebLinkAbout14-550 Rugh
ADVICE OF COUNSEL
October 20, 2014
Donald Rugh
413 Prospect Street
Pittsburgh, PA 15211
14-550
Dear Mr. Rugh:
This responds to your letter dated September 8, 2014, and your submission
received September 17, 2014, 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 restrictions upon employment of an Oil and Gas
Inspector following termination of employment with the Pennsylvania Department of
Environmental Protection (“DEP”).
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.
At the time that you submitted your inquiry, you were employed as an Oil and
Gas Inspector with DEP. You have submitted a copy of a job posting for your position
with DEP, which document is incorporated herein by reference. A copy of the job
classification specifications for the position of Oil and Gas Inspector (job code 71810)
has been obtained and is also incorporated herein by reference.
You stated that you would be retiring from your employment with DEP on
September 20, 2014. You stated that following your retirement, you plan to enter into a
lease agreement to operate some shallow oil wells (the “Oil Wells”) as the co-owner of
an S corporation (the “Corporation”). You further stated that the Oil Wells were drilled in
1980 and that they are classified as legacy wells under the pertinent regulations. You
additionally stated that the Oil Wells are located in a region other than the one in which
you have worked as an Oil and Gas Inspector.
Based upon the above submitted facts, you posed the following questions:
(1) Whether you would be permitted to register the Oil Wells to the
Corporation, with you being named as the operator;
(2) If the answer to question 1 above would be yes, whether you would be
permitted to represent yourself and the Corporation in person with any
Rugh, 14-550
October 20, 2014
Page 2
DEP employee during the first year following your retirement from DEP;
and
(3) Whether there are any other concerns or considerations of which you
should be aware.
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.
As an Oil and Gas Inspector 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; Shinkman, Advice 10-552.
This conclusion is based upon 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 your employment with DEP, you would
become 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.
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.
Rugh, 14-550
October 20, 2014
Page 3
"Person."
A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated."
The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term “person” is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public official/public employee himself,
Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur,
Opinion 95-007.
The term “represent” is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; 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 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
governmental body where the public official/public employee had influence or control
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October 20, 2014
Page 4
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 your employment with DEP would be 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” before
DEP.
Having established the above general principles, your specific questions shall
now be considered.
With regard to your first and second questions, you are advised as follows.
During the first year following termination of your employment with DEP, Section
1103(g) of the Ethics Act would prohibit you from engaging in any activity(ies) that
would involve prohibited representation before DEP as delineated above. Such
prohibited representation would include, inter alia, representing yourself and/or the
Corporation in person with DEP employee(s). Section 1103(g) of the Ethics Act would
prohibit you from registering the Oil Wells to the Corporation, with you named as the
operator, to the extent such would involve prohibited representation before DEP as set
forth above.
Your third question is general and has been addressed above to the extent that it
can be addressed.
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 or employment, or confidential information received by being in
the public position, 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; the applicability of any other statute, code, ordinance, regulation, or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor’s Code of Conduct.
Conclusion:
As an Oil and Gas Inspector for 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 your 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. 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” before DEP. 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
Rugh, 14-550
October 20, 2014
Page 5
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