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HomeMy WebLinkAbout90-519 WalterMr. Jack N. Walter 90 -519 Shenango Valley Water Company Box 572 Sharon, PA 16146 Re: Former Public Employee; Section 3(g); DER; Sanitary Engineer III. Dear Mr. Walter: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1990 This responds to your letter of January 26, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Law presents any restrictions upon your employment following your termination of service with the DER. Facts: You formerly worked at the Department of Environmental Resources (DER) in the Bureau of Community and Environmental Control in the Meadville Regional office as a Sanitary Engineer III. Upon termination of your service you obtained employment with an investor owned utility, Shenango Valley Water Company, which is regulated by the PUC and DER. You have submitted an organizational chart and request advice as to what restrictions would be imposed upon your new employment under the Ethics Law. A job description has been obtained for your position as a Sanitary Engineer III with DER which reflects that you review and analyze technical engineering information associated with the Community Environmental Control Bureau's activities delegated to the Public Water Supply and Bathing Place Programs. Your specific duties consist of: site surveys applicable to any new or modification of existing public water supply or bathing places; review and action upon permit applications or transfers and engineering plans; providing technical assistance and engineering consulting service; conducting pre- operational inspections; providing engineering expertise to resolve technical problems; providing technical consultation relative to the BCEC programs; providing training to field sanitarians; acting as an expert witness upon request; assisting communities and /or water Mr. Jack N. Walter Page 2 industry representatives in securing loans or grants for water system improvements through various state and federal aid programs; attending meetings with municipal officials and community water supply operators relative to environmental issues; working with the central office to assist in primacy development activities; acting as a technical resource person; speaking at professional and civic organizations and performing such as other duties as assigned. Discussion: As a Sanitary Engineer III for DER, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. 5402; 51 Pa. Code 51.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of employment, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual 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. 5402. Initially, to answer your request the governmental body with which you were associated while working with DER must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within Mr. Jack N. Walter Page 3 State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 P.S. S402 Thus, the governmental body with which you have been associated upon the termination of employment would be DER. Therefore, within the first year after termination of service with DER, Section 3(g) of the Ethics. Law would apply and restrict representation of persons or new employers vis -a -vis DER. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated ". It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the Legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit, and my language simply makes it clear in the definition of "governmental body" that we are including subdivisions and offices within that entity. Legislative Journal of House 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you have been associated is DER. The Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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 Nrr. Jack N. Walter Page 4 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. In respect to the one year representation the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. 65 P.S. 5402. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 P.S. 5402. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, (that is DER), including, but not limited to, negotiations or renegotiations in general or as to contracts with the DER; 2. Attempts to influence DER; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee. 4. Participating in any matters before DER over which there was supervision, direct involvement, or responsibility while employed by that governmental body; Mr. Jack N. Walter Page 5 5. Lobbying, that is representing the interests of any person or employer before DER in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by DER constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by DER, is not prohibited as representation. You may, assist in the preparation of any documents presented to DER so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DER. Once again, however, the activity in this respect should not be revealed to the DER. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DER to secure information which is available to the general public. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the governmental body the representation of, or work for the new employer. Finally, the Commission has concluded that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Sanitary Engineer III, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DER, you would become a "former Mr. Jack N. Walter Page 6 public employee" subject to the restrictions imposed by Section 3(g) of the Ethics Law. The "governmental body with which a public official or public employee is or has been associated" is DER. Your conduct should conform to the requirements of the Ethics Law as outlined above. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following 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. Vincent J`: Dopko, Chief Counsel