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HomeMy WebLinkAbout89-527 StallsmithMr. John R. Stallsmith 5219 Woodlawn Drive Harrisburg, PA 17109 Dear Mr. Stallsmith: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 14, 1989 89 -527 Re: Former Public Employee; Section 3(e), DER, Civil Engineer IV This responds to your letter of March 8, 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: After advising that you are currently investigating alternative positions of employment outside of the Commonwealth, you state that you are employed by the Pennsylvania Department of Environmental Resources, hereinafter DER, in the Bureau of Abandoned Mine Reclamation, hereinafter Bureau, as a Civil Engineer primarily designing mine reclamation projects. As a registered engineer you state that you would be investigating positions in private industry or engineering consulting firms or other governmental bodies. However, in order to comply with the Ethics Act and in particular the provision which restricts former public employees from representation before their governmental body for a period of one year after they leave service, you state that you would like to be informed as to which firms or agencies within or without the Commonwealth you may be employed. In addition you would like a description of employment that can be accepted within the above restricted provision of the Ethics Act. Finally, you note that as a registered engineer you may be required to submit permits or proposals to DER or other Pennsylvania agencies and you would like to know if there would be a conflict in such submissions or in negotiating permits or proposals. You conclude by stating you are discussing employment with an engineering consulting firm in Baltimore, Maryland which has a regional office in Pennsylvania and inquiry as to whether the Ethics Act would restrict your Mr. John R. Stallsmith April 14, 1989 Page 2 duties or actions if you became employed by that firm. From your job description, which is incorporated herein by reference, it appears that your duties and responsibilities as a supervisor in the field of civil engineering relative to the coordination and design of mine reclamation projects and other associated facilities: planning and supervision of professional and technical staff relative to mine drainage pollution abatement projects; reviewing pertinent project data to establish project objectives, cost and special requirements; keeping current as to project development and factors affecting design; insuring that all necessary lands and easements have been obtained together with arrangements for any necessary road and utility relocations or adjustments; establishing and maintaining contact with federal, state and local agencies as to the accomplishment of certain projects; participating in job conferences and inspections during the construction phase of projects; providing guidance and maintaining coordination for effective individual and group performance; utilization of management and Department procedures and performing such other duties and responsibilities as are required. Discussion: As a Civil Engineer IV 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 §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: 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 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 Mr. John R. Stallsmith April 14, 1989 Page 3 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 Ewinq, Opinion 79- 010. See also Kury 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. 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 S1.1. Mr. John R. Stallsmith April 14, 1989 Page 4 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 bodies with which you have been including, but not limited to, 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; 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. before the governmental body or associated, (that is the Bureau), negotiations or renegotiations on 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. Mr. John R. Stallsmith April 14, 1989 Page 5 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. 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 Civil Engineer IV, 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. 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. Mr, John R. Stallsmith April 14, 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 §2.12. Sincerely, tl-t>4A- Vincent JV Dopko, General Counsel