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HomeMy WebLinkAbout85-552 ShowmanSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 4, 1985 ADVICE OF COUNSEL Mr. Thomas Showman R.D. #1 Box 197 Connellsville, PA 15425 Re: Former Public Employee; Section 3(e), Solid Waste Specialist Dear Mr. Showman: 85 -552 This responds to your letter of April 3, 1985, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Pennsylvania Department of Environmental Resources. Facts: On April 28, 1985 you terminated your employment with the Pennsylvania Department of Environmental Resources, hereinafter, the Department. You were employed in the Department's Bureau of Solid Waste Management, hereinafter, the Bureau, as a solid waste specialist. You were assigned to the Bureau's Southwest Regional Office, Pittsburgh, Pennsylvania. An employee serving in this position performs a variety of assignments, regarding the regulation of facilities to ensure compliance with the Commonwealth's rules and regulations governing solid waste management. Generally, work requires the application of these rules and regulations during the conduct of inspections, investigations, enforcement, plan review and permit compliance activities. In this position you were also responsible for inspecting hazardous waste management facilities, municipal waste disposal sites; and investigating complaints involving homeowner garbage problems, agricultural waste disposal sites, open dumps, demolition waste landfills, sewage sludge disposal areas, and residual and hazardous waste facilities. In addition thereto, work involves performing preliminary assessments and site inspections under the ERRIS Program (Superfund). Work also includes PIr. Thomas Showman June 4, 1985 Page 2 determining violations of rules and regulations, preparing violation letters, preparing and filing citation forms, preparing departmental orders, negotiating settlements of violations, and attending enforcement conferences. You were responsible for providing information to governmental officials, engineers, facility operators, and the public on departmental programs, rules and regulations, Policy and Procedures; and providing advice to governmental officials, engineers, and facility operators on the disposal of hazardous waste, development of plans, Solid Waste Management Act requirements, Resource Recovery Act requirements, and how to solve operational problems. Work is assigned in the form of specific goals and objection and the employee in the position exercises considerable freedom in scheduling and completing the work. We have reveiwed both your job description and the position specification for this classification and have incorporated said documents herein by reference. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a Solid Waste Specialist for the Department, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See Luci, 84 -621; Snelson, 84 -601. Consequently, upon termination of this employment, you became a "former public employee " subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403. Mr. Thomas Showman June 4, 1985 Page 3 Initially, to answer your request we must identify the "governmental body" with which you were associated while working with Department. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised within the Bureau of Solid Waste Management. Thus the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau generally, including the Southwest Regional Office. Therefore, within the first year after you would leave the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Bureau and its regional offices. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau and its regional offices. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department . We do note, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. Mr. Thomas Showman June 4, 1985 Page 4 The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Bureau and the regional offices therein), including, but not limited to, negotiations or renegotiations on contracts with the Bureau and the regional offices therein; 2. Attempts to influence the above identified governmental body; 3. Participating in any matters before the Bureau or the regional offices therein over which you had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or employer before the Bureau or the regional offices in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission, has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Bureau or the regional offices, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Department, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Bureau or the regional offices so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau or the regional offices. Once again, however, your activity in this respect should not be revealed to the Bureau or the regional offices. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau or the regional offices to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Bureau or the regional offices your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. Mr. Thomas Showman June 4, 1985 Page 5 Conclusion: As a Solid Waste Specialist, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department of Environmental Resources, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. Such restriction would prohibit your representation of persons before the Bureau of Solid Waste Management and the regional offices therein, for a period of one year after your termination of service with the Department. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Si ncerely, John Contino General Counsel