Loading...
HomeMy WebLinkAbout88-516 LorenzenMr. Douglas Lorenzen 308 South Valley Road Paoli, PA 19301 Dear Mr. Lorenzen: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 24, 1988 ADVICE OF COUNSEL 88 - 516 Re: Former Public Employee; Section 3(e), Department of Environmental Resources This responds to your letter of January 19, 1988, 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: In your letter you state that you retired on January 3, 1988 as acting Director of the Division of Emergency and Remedial Response, hereinafter Division, in the Department of Environmental Resources, hereinafter DER. You further state that you will be employed by a small environmental consulting firm in Paoli, which provides consulting services for environmental assessments of industrial and hazardous waste treatment, storage and disposal sites and which also provides environmental consulting services to federal, state and local government agencies. You also state that your firm wishes to bid on an RFP that was written under your direction while employed in DER. You conclude by asking what limitations apply under the Ethics Act as to your activities in general and specifically as to the RFP. The job description /specification for your position in the Bureau of Waste Management in the Division of DER, which is incorporated herein by reference, recites that your position manages the activities in the Division as well as supervises the technical staff in order to implement state -wide programs consistent with the Federal Superfund Program. Your duties and responsibilities are delineated as follows: Mr. Douglas Lorenzen February 24, 1988 Page 2 As to the Potential Hazardous Waste Site Program, to provide liaison with EPA, to establish state priorities regarding evaluation of potential hazardous waste sites, to coordinate state -wide programs for preliminary site assessments and investigations, to recommend state -wide priorities for emergency action and to interface with the legal staff; as to the Federal Superfund Program, to provide liaison with EPA. to coordinate a state -wide program of evaluation for sites for the Superfund candidacy, to interface with federal agencies, to negotiate state /EPA agreements and contracts for the Superfund site investigations, to coordinate sites - specific Community Relations Programs, to provide guidance and coordination of on -site state coordinators, to interface with EPA as to site investigation reports and to implement appropriate enforcement actions on Superfund sites, to update and assist in the implementation of the State Contingency Plan, to interface with Department of Health and other agencies relative to Superfund sites, to coorporate with PEMA on sites - specific contingency plans and to coordinate state activities required by the National Contingency Plan; as to the State Uncontrolled Waste Site Response Programs, to develop and implement state -wide policy on non - Superfund uncontrolled waste sites, and emergency responses, to coordinate state -wide programs of site evaluations, to provide guidance and coordination for the implementation of response activities, to coordinate with fiscal management and contract section regarding preparation of RFP's, to interface with legal staff regarding enforcement actions, to interface with the Department of Health as to public health investigations, to cooperate with PEMA regarding site - specific contingency plans; as to the Bureau of Waste Management Response Team, to procure equipment, to establish and implement maintenance service, to aid in the formulation and implementation of a safety /occupational health program, to provide guidance for safety officers, to coordinate the allocation of equipment, to implement schedules for in- service safety training, to provide assistance to other bureaus, to formulate and implement policy relative to hazardous and non - hazardous spills /accidents, to provide on -site support and to perform such other duties as are required. Discussion: As acting Director for DER, 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. 6402; 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. 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: Mr. Douglas Lorenzen February 24, 1988 Page 3 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 it is necessary to identify the "governmental body" with which you were associated while working with DER. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed . 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 Opinion, 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 the Division. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Division. Therefore, within the first year after you would leave DER, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Division. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Division. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from DER. It is noted, 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 Opinion, 83 -014; Zwikl Opinion, 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 Mr. Douglas Lorenzen February 24, 1988 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 Division), including, but not limited to, negotiations or renegotiations on contracts with the Division; 2. Attempts to influence the Division; 3. Participating in any matters before the Division over which you had supervision, direct involvement, or responsibility while employed by DER; 4. Lobbying, that is representing the interests of any person or employer before the Division in relation to legislation, regulations, etc. See Russell Opinion, 80 -048 and Seltzer Opinion, 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 Division, constitutes an attempt to influence your former governmental body. See Kilareski Opinion, 80 -054. Therefore, within the first year after you leave DER, you should not engage in the type of activity outlined above. (The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Division , is not prohibited as "representation." See Kotalik Opinion, 84 -007). You may, assist in the preparation of any documents, such as a bid on an RFP, presented to the Division so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Division. Once again, however, your activity in this respect should not be revealed to the Division. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Division to secure information which is available to the general public. See Cutt Opinion, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Division 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 Opinion, 80 -056 and Beaser Advice, 81 -538. Mr. Douglas Lorenzen February 24, 1988 Page 5 Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, regulation, or ordinance or other code of conduct other than the Ethics Act has not been considered. Additionally, it is noted that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). Conclusion: As acting Director of the Division, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with DER, 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 Division. 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. S ,cerely, Vincent J. Dopko General Counsel