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HomeMy WebLinkAbout89-520 BoobMr. Dana R. Boob P.O. Box 33 Millheim, PA 16854 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 27, 1989 89 -520 Re: Former Public Employee; Section 3(e), DER, Sanitary Engineer IV Dear Mr. Boob: This responds to your letter of February 16, 1989, 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 state that you are currently a state employee working for the Department of Environmental Resources, hereinafter DER, Williamsport Regional Bureau of Community Environmental Control, hereinafter Bureau. After noting that you have held the position of Chief of the Technical Services Section in the Bureau since October, 1986 to the present, you indicate that you previously worked as Chief of the Permits and Grant Section, Bureau of Water Quality Management. You then advise that you intend to leave state employment on either March 2, or March 16, 1989, and enter into your own engineering /land surveying practice. You then pose a series of questions under the Ethics Act: whether you may prepare and seal permit applications for public water systems or public bathing systems for submission to the Bureau; whether you may prepare and seal permit applications for public water systems or public bathing systems for submission to the Bureau of Community Environmental Control Regional Offices in Harrisburg, Wilkes - Barre, Norristown, Pittsburgh and Meadville; whether you may prepare and seal permit applications for sewage or industrial waste water systems to the Williamsport Regional Water Quality Management Bureau; whether you may prepare and seal permit application for sewage or industrial waste water systems for submission to the Bureau of Water Quality Management in the Mr. Dana R. Boob March 27, 1989 Page 2 Regional Offices in Harrisburg, Wilkes - Barre, Norristown, Pittsburgh and Meadville and lastly whether you may represent clients at meetings with the Williamsport Department of Environmental Resources staff, as well as staff of other DER Offices. After stating that any restrictions in the above five areas would limit your ability to practice your profession, you request responses to the above questions as well as a definition of the bounds within which you may work after leaving state service. From a review of your job description, which is incorporated herein by reference, the position statement for your position is as follows: "This is a working supervisory position in sanitary engineering. This employe is the chief of the Technical Services Section in the Williamsport Region and directs a regional unit in reviewing public water system and bathing place permit applications and conducting regional drinking water studies and surveys; coordinates comprehensive drinking water quality management for the regional implementation of the Pennsylvania Safe Drinking Water Act and oversees provisions of uniform technical information to the District Offices and the public in the region. In addition, your specific duties and responsibilities are as follows: review modules, engineering reports, plans and specifications relative to water supplies and bathing places and take action by recommending issuance or refusal; review applications in the bathing program for facilities which are not included in the design manual; review plans and specifications as to modifications for bathing and water facilities; process permit transfers for bathing places and water supplies; monitor monthly and final reports as to experimental permits; provide consultation to various individuals as to procedures and documentation for permit submittal; conduct or attend meetings vis -a -vis pending applications; begin the permit process on existing water supplies; advise parties of violations at facilities; conduct inspections on newly constructed water and bathing facilities or in those facilities where there is a permit pending or no permit is pending or where there is a modification; write deficiency letters; inspect existing problem facilities and water systems; provide technical assistance and engineering consultation; provide coordination as to applications with various Bureaus; review and follow up as to specifications on water wells; respond to emergencies associated with contaminated public water; initiate enforcement action on water and bathing cases and perform such other miscellaneous duties and responsibilities as are required in the position. Mr. Dana R. Boob March 27, 1989 Page 3 Discussion: As a Technical Services Chief 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 51.1. 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. 5403. 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 Bury v. 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 Bureau. 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 DER, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Bureau. Mr. Dana R. Boob March 27, 1989 Page 4 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 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 §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 DER; Mr. Dana R. Boob March 27, 1989 Page 5 4. Lobbying, that is representing the interests of any person or employer before the Bureau 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 Bureau, 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 Bureau, is not prohibited as "representation." See Kotalik, Opinion 84 -007). 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, 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 Bureau your representation of, or work for your new employer. Finally, administering renegotiating by the Ethics 81 -538. the Commission has concluded that if you are an existing contract as opposed to negotiating or a contract, your activities would not be prohibited Act. See Dalton, Opinion 80 -056 and Beaser, Advice In applying the above analysis to the instant matter, although you could prepare various applications submitted to DER, you could not sign the proposal nor list your name as the individual who would provide technical assistance as to the Bureau which is your governmental body. As to your second question, the Ethics Act would not preclude you from preparing and sealing permit applications for public water systems or public bat 6ystems for submission to the Harrisburg, Wilkes- Barre, Norristown, Pittsburgh and Meadville Offices since those offices would not be considered your governmental body. Mr. Dana R. Boob March 27, 1989 Page 6 Regarding your third question, you would not be precluded from preparing and sealing permit applications for sewage or industrial water, waste water systems in the Williamsport Regional Bureau of Water Quality Management since that is not the governmental body with which you are associated. Additionally, as to your fourth inquiry, you may prepare and seal permit applications for sewage or industrial waste water systems and submit them to the Bureau of Water Quality Management in the Regional Offices in Harrisburg, Wilkes- Barre, Norristown, Pittsburgh and Meadville since those office are likewise not the governmental body with which you have been associated. As to your last inquiry, you would be precluded under the Ethics Act from representing clients before your governmental body, the Bureau, for a period one year after you leave governmental service. 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. S403(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 Technical Services Section Chief, 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 Bureau. 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 _ _uires you to file a Statement of Financial Interests for the year following your termination of service. Mr. Dana R. Boob March 27, 1989 Page 7 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 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, Vincent J. Dopko, General Counsel