HomeMy WebLinkAbout89-511 KnorrMr. David F. Knorr
74 Brightley Circle
Collegeville, PA 19426
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 1, 1989
Re: Former Public Employee; Section 3(e), Water Pollution
Biologist III, DER
Dear Mr. Knorr:
This responds to your letter of January 2, 1989, in which
you requested advice from the State Ethics Commission.
89 -511
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: After advising that on January 18, 1989, you will resign
your position as Water Pollution Biologist III in the Department
of Environmental Resources, hereinafter DER, in the Norristown
Regional Office, hereinafter Office, you state that you have
accepted position with a large international environmental
consulting firm in the Philadelphia area and request advice as to
what restrictions would be imposed upon you under the Ethics Act.
- -- -'Y 4 ' 1 > description and c1e i fication specification, which
are ii,corp�ratea aerein Dy
staff of Water Pollution Biologists and Water Quality Specialists
engaged in consultation activities relative to aquatic biology in
the Water Quality Management Bureau. Your specific duties and
responsibilities are summarized as follows: monitor surface
water; implement CORE and WQN monitoring networks and maintain a
data file; coordinate CORE and WQN sampling, biological and water
chemistry sampling at stations wherein you serve as a backup;
perform cause /effect surveys; plan and implement stream surveys
to determine effects of waste water discharge and pollution
incidents; conduct surveys of unaffected streams; prepare written
reports; review biomonitoring requirements included in NPDES
reports and provide technical services to to the Permits Section;
review and recommend water quality criteria; coordinate and
Mr. Donald F. Knorr
March 1, 1989
Page 2
assist in review of various water programs; conduct and
coordinate biological portion of AWT /AST surveys and other
special studies; review and coordinate special studies such as
the environmental impact statements; review and maintain
technical reference material relative to aquatic toxicity;
coordinate regional program activities with other agencies;
provide information and assessment as to water incidents
affecting aquatic life and provide technical advice and expertise
relative to enforcement activities.
Discussion: As a Water Pollution Biologist III 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. S402; 51 Pa. Code S1.1. 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:
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. S403.
Initially, to answer your request the "governmental body"
with which you were associated while working DER must be
identified. 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 v. Commonwealth of Pennsylvania, State Ethics
Commission, 435 A.2d 940 (1981).
Mr. Donald F. Knorr
March 1, 1989
Page 3
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 Office. Thus, the "governmental body" with which
you have been "associated" upon the termination of your
employment would be the Office. 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 Office.
The Ethics Act would not affect your ability to appear
before agencies or entities other than with respect to the
Office. 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 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 employee.
51 Pa. Code S1.1.
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 office),
including, but not limited to, negotiations or renegotiations on
contracts with the Office;
Mr. Donald F. Knorr
March 1, 1989
Page 4
2. Attempts to influence the Office;
3. Participating in any matters before the Office 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 Office 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 Office, 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
Office, is not prohibited as "representation." See Kotalik,
Opinion 84 -007).
You may, assist in the preparation of any documents
presented to the Office so long as you are not identified as the
preparer. You may also counsel any person regarding that
person's appearance before the Office. Once again, however, your
activity in this respect should not be revealed to the Office.
Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the
Office 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 Office 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 -, aser, Advice
81 -538.
Mr. Donald F. Knorr
March 1, 1989
Page 5
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).
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.
Conclusion: As a Water Pollution Biologists III, 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 Office. Lastly, the propriety
of the proposed conduct has only been addressed under the Ethics
Act.
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.
such.
This letter is a public record and will be made available as
Mr. Donald F. Knorr
March 1, 1989
Page 6
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 52.12.
Sincerely, �L
Vincent J. Dopko,
General Counsel