The URL can be used to link to this page

Home My WebLink About84-537 LinbergDear Mr. Linberg: Matin Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 15, 1984 ADVICE OF COUNSEL 8/: -537 Mr. Nile A. Linberg 630 Cherry Street Greensburg, PA 15601 RE: Representation; Restrictions; Section 3(e); DER, Bureau of Mining and Reclamation This responds to your letter of January 30, 1984, in which you requested advice from the State Ethics Commission. Issue: You would like to know what restrictions are imposed on you by the Ethics Act upon your retirement from the Department of Environmental Resources as an Inspector Supervisor with the Bureau of Mining and Reclamation. Facts: You were formerly a surface mine conservation inspector supervisor with the Bureau of Mining and Reclamation in Greensburg, Pennsylvania. In that capacity, you ws.re responsible for supervising the work of inspectors engaged in the inspection of surface mines in order to determine compliance with Commonwealth surface mining laws and regulations. You were also responsible for meeting with labor unions, public officials, civic and private groups, mining officials and the public in order to explain the Department's surface mining program, to answer questions, and to promote voluntary compliance with the surface mining laws. Your work involved planning and organizing work, assigning work, evaluating employee performance, interviewing and recommending employee selection, receiving and answering grievances, and approving leave. Your work further involved initiating and monitoring compliance actions and negotiations, regulating, and monitoring consent orders and agreements. As a former inspector supervisor, you would like to know what restrictions are imposed upon you by the Ethics Act in your future endeavors. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Nile A. Linberg March 15, 1984 Page 2 Discussion: While employed by the Commonwealth as a surface mine conservation inspector supervisor, hereinafter, Inspector Supervisor, you were a "public employee" and, therefore, upon termination of your service with the State, you became a "former public employee." The Ethics Act regulates the conduct of both current and former public employees to insure the public of the independence and impartiality of its servants. Therefore, you must be aware of the restrictions upon representation which relate to "former public employees" as delineated by Section 3(e) of the Ethics Act, which provides: (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. 55 P.S. 403(e). With this restriction in mind, a discussion of what the term "representation" means is important. In general, the Commission has determined that the prohibitions of Section 3(e) and the term "representation" extends to such activities as: 1. personal appearances before the governmental body with which you were associated, and including, but not limited to, negotiation on contracts with that body; 2. attempts to influence that body; 3. participating in any manner before your former governmental body in any case over which you had supervision, direct involvement, or responsibility while employed by the governmental body; 4. lobbying, that is, representing the interest of any person before the governmental body to influence that body in relation to legislation, regulations, etc. See Kilareski, 80 -054. Opinions of the Commission indicate that a former public employee may appear in a third forum such as state or federal court, may make general informational inquiries of the nature made by the public of their former governmental body, and may utilize the knowledge and expertise gained in their tenure as public employees, except as set forth above. You may, in addition, administer contracts, but you may not negotiate or re- negotiate such contracts, between your former goverenmental body and your current employer which exist or which are awarded in accordance with the above restrictions. Mr. Nile A. Linberg March 15, 1984 Page 3 Any restrictions relating to representation as outlined above, relate only to the "governmental bodies" with which you may have been "associated" while employed by the Commonwealth. The restrictions, as outlined above, relate only to those governmental bodies, and any contacts with members of the legislative or executive branches, or Commonwealth departments, bureaus, or employees other than the governmental body with which you were associated are not restricted. Likewise, purely social or informational contacts with persons in the governmental body with which you were associated or otherwise are not restricted. It remains to be determined precisely which "governmental body" you are to be deemed to have been "associated" and to which the above restrictions upon representation would apply. Under the facts and the organizational chart which you have presented to the Commission , we find that the governmental body with which you have been associated is the of Mining and Reclamation (BMR) and any of its staff, including but not limited to Mr. Thomas Vayansky, the Greensburg District Office District Mining Manager, his office and his subordinate staff. Thus, the restrictions, as enumerated above, must be observed vis -a -vis these persons and entities for a one year period from the day upon which you terminated your state employment. If your contact with the above governmental body is merely designed to discuss matters or issues or obtain information available to the general public, such activity does not fall within the scope of restricted representation. However, you should be aware that the Commission has held that within the scope of Number 1, outlined above, a former employee may not leave his position and then sign and submit bid proposals using his own name where these will be submitted to or reviewed by the governmental body or bodies with which he was associated within a one year period. Dalton, 80 -056 and Anderson, 83 -014. The fact that you might sign or prepare a bid proposal or that your name might appear as an employee who will serve on the contract if awarded, is within the prohibition against "attempting to influence" the governmental body with which you are associated. Prior Commission opinions make it clear that you may not prepare and sign as preparer and file such proposal or be listed on same as a technical advisor, support staff, etc., under these circumstances. You may, however, assist in preparing such items where another person signs as the preparer. Conclusion: You are a former public employee, and your conduct as such should conform to the guidelines delinated by this Advice. You may not, for a one year period following departure from state service, engage in any of the activities outlined above in Nos. 1 - 4 and this Discussion. These restrictions apply to your representation before the Bureau of Mining and Reclamation and any of its staff, the Greensburg District Office Mining Manager, his office and staff. Mr. Nile A. Linberg March 15, 1984 Page 4 You should also note that under Section 4(a) of the Act you are required to file a Statement of Financial Interests for the year following your termination of employment with the Commonwealth. See 65 P.S. 404(a). Thus, the Statement of Financial Interests to record data for calendar year 1984 should be filed no later than May 1, 1985. 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. 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. SSC /rdp cc: Nicholas DeBenedictis, Secretary Thomas Vayansky, District Mining Manager Dennis Farley, Director of Personnel Sipcerely, Qom- / Sandra S. CKri stianson General Counsel