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HomeMy WebLinkAbout89-557 AltersDaniel L. Alters 665 First Avenue Williamsport, PA 17701 Dear Mr. Alters: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1989 89 -557 Re: Former Public Employee; Section 3(e), Water Quality Regional Monitoring and Compliance Manager, DER This responds to your letter of May 23,1989, 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 a 16 -year employee of the Department of Environmental Resources, hereinafter DER, in the Williamsport Regional Office, Bureau of Water Quality Management, hereinafter Bureau. After noting that your position is a Water Quality Regional Monitoring and Compliance Manager, you indicate that you are considering leaving state service for private enterprise to become a consultant for business regarding the use of underground storage tanks systems, such as gasoline filling stations, petroleum marketers,and other industries. You state that the type of consulating work that you would consider would be spill mitigation, regulatory assistance, and general administrative assistance. After noting that DER has no formal program in this area, you state that proposed legislation and regulations may be enacted this year in the area of underground storage tanks with the proposed program identified as UST /AST. After advising that you would request a ruling regarding limitations upon you in this proposed field, you indicate three sets of circumstances that might occur: 1. Termination of your state service prior to the enactment of the legislation followed by your working with the consulting firm or other established business wherein you would consult in areas of UST /AST operations, maintenance, regulation and spill Daniel L. Alters June 15, 1989 Page 2 mitigation; 2. Termination of your state service subsequent to the enactment but prior to the time that DER would effectuate a program over which you have regulatory authority wherein you would begin your consulating firm or would seek gainful employment in the areas of UST /AST operations, maintenance, regulation and spill mitigation and lastly; 3. Termination of your state service subsequent to the enactment of the law and implementation of the program by DER wherein you would be involved in the implementation of the regulatory program followed by the beginning of your consultating firm or gainful employment in areas UST /AST operations, maintenance, regulation and spill mitigation. You conclude by noting that you would have no dealings with facilities you may have regulated in the past during the one year period of restriction, but indicate that new problems would arise once the program is implemented. From your job description and classification specification which are incorporated herein by reference, you duties and responsibilities as the Water Quality Regional Monitoring and Compliance Manager may be summarized in part as follows: assisting and directing the activities relative to the regulation of facilities to insure compliance with water quality management laws rules and regulations together with coordinating the activities of various units to ensure that they are working towards the attainment of similar goals and objectives as well as coordinating such activities in these units with other organizational units; interpreting assignments, rules, regulations, policies and procedures and meeting with various individuals and parties relative to inspections, investigations, enforcement, and review and monitoring activities; testifying as an expert witness before various boards and in the courts which would entail review and preparation; determining streams to be analyzed for the Water Quality Network, reviewing and approving PPC plan as well as reviewing proposed changes to water quality management rules, regulation, policies and procedures; responding to emergency situations which would entail providing information to various groups and individuals and holding news conferences; planning and organizing work of the multi- units, signing work, reviewing work, performance, performing evaluations, interviewing as to employee selection, resolving grievance and complaints; assigning work in the form of broad program goals and objectives and performing such other duties and responsibilities as are required. Daniel L. Alters June 15, 1989 Page 3 Discussion: As a Water Quality Regional Monitoring and Compliance Manager 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 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 Daniel L. Alters June 15, 1989 Page 4 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 51.1. 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 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. 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 Daniel L. Alters June 15, 1989 Page 5 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, 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. As to the three inquiries you make regarding the UST /AST program, the restrictions in Section 3(e) of the Ethics Act as outlined above do not restrict you as to a given program but as to your former governmental body. Thus, you would not be precluded in performing consulating work for agencies other than DER or for a firm in which you would be gainfully employed; however, in the event that the program is implemented and you work in your current bureau or are assigned to some other bureau of division which would have responsibility over such program, then the one year restrictions as outlined above would be applicable to that bureau or division. Thus, in the event that you would have duties and responsibilities as to this new program, you could not for a period of one year engage in the restricted activities outlined above before that given bureau or division. 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 Daniel L. Alters June 15, 1989 Page 6 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 Water Quality Regional Monitoring and Compliance Manager, 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, subject to the qualification noted above. 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. S},pcerely, Vincent . Dopko, General Counsel