HomeMy WebLinkAbout85-584 DoughertyMr. John V. Dougherty
Gannett Fleming
651 Allendale Road
P.O. Box 368
King of Prussia, PA 19406
Dear Mr. Dougherty:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
September 20, 1985
ADVICE OF COUNSEL
85 -584
Re: Former Public Employee; Section 3(e), Department of Environmental
Resources, Sanitary Engineer V
This responds to your letter of September 6, 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
Department of Environmental Resources.
Facts: You have recently terminated your position within the Department of
Environmental Resources, hereinafter the Department. While employed by the
Department, you were classified as a Sanitary Engineer V and you were Chief of
the Planning and Evaluation Section of the Division of Municipal Facilities
and Grants. The division is administratively within the Bureau of Water
Quality Management, hereafter the Bureau.
Responsibilities for a person in this position encompass a wide variety
of final technical determinations as well as the planning, evaluation,
coordination, and implementation of the highly complex and technical sewerage
and construction grants programs.
In addition, your duties and responsibilities included, in part, the
following:
Maintaining liaison with the regional offices in assigned programs to
coordinate consistant statewide implementation of major program policies and
procedures.
Mr. John V. Dougherty
September 20, 1985
- Page 2
Coordinating, and monitoring the Bureau's activities in all facilities,
planning activities, particularly as they relate to the Sewerage Construction
Grant Program; serving as the Bureau's principal contact with the U.S.
Environmental Protection Agency relative to this major program area.
Developing and recommending implementation of new legislation,
regulations, policies, procedures, and guidelines for implementation of
planning aspects of the sewerage program and the construction grants program,
including the priority rating system required by federal law for distribution
of grant funds and the advances of allowance grant program for planning and
design of future sewerage construction grants projects.
Providing liaison and coordi nation wi th other i ntra-Bureau and
extra - Bureau planning programs.
Reviewing and advi sing the Bureau on new state and federal legislation
affecting the sewerage and construction grants programs; preparing comments
for the Bureau on proposed legislation affecting these program areas.
Developing and implementing program recommendations relative to the
Bureau's municipal enforcement strategy; serving as liaison with EPA and the
Permits and Compliance Division regarding the National Municipal Policy;
providing guidance to regional office staff on municipal compliance
activi ties.
Following your termination of service with the Department you obtained
employment with Gannett Fleming Environmental Engineering Company and you will
be performing services relating to wastewater collection and treatment as well
as solid and hazardous waste management.
You have asked various questions in relation to your duties and
responsibilities under the State Ethics Act.
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 Chief of the Planning and Evaluation Section of the Bureau 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 Showman, 85 -552.
Mr. John V. Dougherty
September 20, 1985
- Page 3
Consequently, upon termination of this employment, you would become 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.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with the 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).
Fran 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
generally. Thus, the "governmental body" with which you have been
"associated" upon the termination of your employment would be the Bureau and
the divisions and sections within the Bureau as well as the regional offices
relating thereto. This is so, especially in light of your job description
which indicates that you were responsible for liaison and coordination on a
bureau level. You also were responsible for reviewing and advising the Bureau
generally on legislation, programs and other matters. 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.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Bureau. We note that if you exercised
any influence or control over any specific project or grant for another agency
or municipal body, you may need to seek the further advice of this Commission
prior to representing your new employer before that body. 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,
Mr. John V. Dougherty
September 20, 1985
- Page 4
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; Zwi kl , 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.
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), including, but not
limited to, negotiations or renegotiations on contracts with the Bureau;
2. Attempts to influence the Bureau;
3. Participating in any matters before the Bureau 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 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, constitutes an attempt to influence your former governmental body.
See Ki l areski , 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 so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Bureau. Once
again, however, your activity in this respect should not be revealed to the
Bureau. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Bureau to
secure information which is available to the general public. See Cutt,
Mr. John V. Dougherty
September 20, 1985
Page 5
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 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.
Conclusion: As Chief of the Planning and Evaluation Section, Bureau of Water
Quality Management with the Department of Environmental Resources, you are to
be considered a "public employee" as defined in the Ethics Act. Upon
termination of your service with the Department, you would become a "former
public employee" subject to the restrictions imposed by Section 3(e) of the
Ethics Act. As such, your conduct should conform to the requirements of the
Ethics Act as outlined above. Your governmental body, for the purpose of the
one year representation restriction, is the Bureau of Water Quality Management
including the divisions, sections and regi onal offices therei n.
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 nc
ohn J." .nt
Gen Counsel