HomeMy WebLinkAbout85-588 Manduke IIIDear Mr. Manduke:
Mailing Address
State Ethics Commission
308 Finance Building
P. 0. Bo:: 11470
Harrisburg, Pa. 17108 -1470
October 11, 1985
ADVICE OF COUNSEL
85 -588
Mr. Joseph E. Manduke, III
Dunn Geoscience Corporation
P.O. Box 78
Camp Hill, PA 17011
Re: Former Public Employee; Section 3(e), Hydrogeologist, Department of
Environmental Resources
This responds to your letter of August 19, 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: You indicate that you have recently terminated your service with the
Commonwealth of Pennsylvania. Specifically, you were employed by the
Pennsylvania Department of Environmental Resources, hereinafter the
Department, as a hydrogeologist. In that position you were assigned to the
Bureau of Solid Waste Management, Norristown Regional Office. In that
position you were responsible for various functions relating to hydrogeology,
the knowledge of the understanding of movement of water through and across the
earth, as it related to solid and hazardous waste management. In this
respect, you analyzed and evaluated data and conducted investigations of solid
or hazardous waste disposal sites. You were responsible for meeting with
consulting engineers, hydrogeologist and other technical advisors representing
industries and disposal sites in order to familiarize them with solid waste
management laws, regulations, policies and procedures. You were responsible
for serving as an expert witness in the field of hydrogeology in cases before
the Environmental Hearing Board and court's in the state of Pennsylvania. You
were involved in permit application review processes as well as the
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Joseph E. Manduke, III
October 11, 1985
Page 2
investigative process regarding disposal sites. You were also responsible for
evaluating and making recommendation on the closure and remedial action for
unpermitted or abandoned hazardous and solid waste disposal sites. You also
represented the bureau at meetings on matters involving regional ground water
protection and preservation and solid waste management. You were responsible
for coordinating regi onal hydrogeologic activities with the Bureau of Solid
Waste Management, Division of Hazardous Waste and Operations, and the Bureau
of Laboratories to insure consistency /compliance with state and federal
regulations and policy.
While the foregoing only represents a portion of your duties and
responsibilities, we note that we have reviewed your job description and have
incorporated that document herein by reference.
You have accepted a job with the Dunn Geoscience Corporation. This is a
geotechnical consulting firm. Your work at that company involves
hydrogeology, solid waste and ground water consultation. You indicate that
you are also required to market perspective clients. You have requested the
advice of the State Ethics Commission as to any restrictions that are placed
upon you by 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 Hydrogeologist 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; Richner, 84 -578.
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.
Mr. Joseph E. Manduke, III
October 11, 1985
Page 3
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).
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 excercised within the Bureau of
Solid Waste Management, hereinafter the Bureau. This is so, in light of the
fact that you were responsible generally for representing the Bureau with
other divisions of the Department and in light of the fact that you are
responsible for representing the Bureau at meetings on matters involving
regional groundwater protection and preservation and solid waste management.
Thus, the "governmental body" with which you have been "associated" upon the
termination of your employment would be the Bureau. 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. 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
b1cto III
Page 4
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
Deaprtment;
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 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 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,
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.
Octo4rei l,Ei98anduke, III
Page 5
Conclusion: As a Hydrogeologist II, you are to be considered a "public
employee" as defined in the Ethics Act. Upon termination of your service with
the Pennsylvania Department of Environmental Resources, 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 Solid Waste
Management.
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
servi ce.
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
Sinc
John J onti
Gen al Counsel