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HomeMy WebLinkAbout84-601 SnelsonDear Mr. Snelson: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 28, 1984 ADVICE OF COUNSEL Mr. Alan Snelson 84 -601 R.D. 8 Box 229 Van Avenue Mountaintop, PA 18707 RE: Former Public Employee; Section 3(e), Regional Solid Waste Supervisor, DER This responds to your letter of August 24, 1984, 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 Commonwealth. Facts: You indicate that as of July 23, 1984, you left your employment with the Department of Environmental Resources, hereinafter, DER. You served with DER for twelve (12) years in a number of positions prior to July 23, 1984. Specifically, from January, 1972 through September, 1983, you were classified as a Solid Waste Specialist. Then, from January, 1981 through March, 1982, you served as Acting Regional Solid Waste Facility Supervisor with the Bureau of Solid Waste Management in the Wilkes -Barre Regional Office, hereinafter, the Bureau- Regional Office. Finally, from September, 1983 through July, 1984, you were classified as the Regional Solid Waste Operations Supervisor within the Bureau - Regional Office. Upon your termination of employment with DER, you wish to continue your career in the field of solid waste management in the public and /or private sector. In this regard you seek advice as to what activities are within the scope of "Restricted Activity" set forth in the Ethics Act under Section 3(e), 65 P.S. 403(e). You ask the following specific questions: Mr. Alan Snelson August 28, 1984 Page 2 a. In general, what are your restrictions with regard to doing business on behalf of future employers or clients with DER or other governmental, agencies? b. Is there any prohibition against your accepting a position or against any person hiring you, in general? c. What specific restrictions, if any would apply if you were to be employed by the West Side Landfill Authority of Luzerne County, hereinafter, the Authority? With regard to this latter question and the Authority, you indicate that during the time frame of November, 1978 to December, 1979, you had inspected a landfill which was operated by the Authority and which was subsequently closed. From January, 1981 to March, 1982, you supervised the regional technical staff in review of an application for a permit by the Authority. The permit was ultimately issued, but you were not the person who had the authority to approve the issuance of this permit. During the time frame of September, 1983 through July, 1984, you supervised four Solid Waste Specialists but you indicate that none of the individuals you supervised had authority to review or inspect operations of the Authority. The inspectors that had such responsibility with respect to the Authority reported to another supervisor. In effect, you indicate that as a public employee with DER, you have had no dealings with the Authority for over two and one half years. You included your job description which you have held and a list of the major duties for each of these positions as well as an organization chart of the Wilkes-Barre Office of DER. This information is incorporated herein by reference. Discussion: As a Regional Solid Waste Operations Supervisor 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. See Section 2 of the Ethics Act, 65 P.S. 402 and the regulations of the Commission set forth at 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, if you were to terminate 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: Mr. Alan Snelson August 28, 1984 Page 3 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 we must identify the "governmental body" with which you were associated while working with DER. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". 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 employment extends not to those entities where he may have had contact or acquired acquaintances and colleagues but only to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From your job description and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the Bureau - Regional Office (Wilkes - Barre). Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment with DER would be the Bureau - Regional Office. Therefore, within the first year after you would leave DER, Section 3(e) of the Ethics Act would apply and restrict your activity of "representation" of persons or new employers vis -a -vis the Bureau - Regional Office. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau - Regional Office. Likewise, there is no general restriction against your seeking employment such as with the Authority and engaging in private work or supplying services to clients or employers, in general, following your retirement or departure from DER. You may not, however, "represent" any new employer such as the Authority or client before Bureau - Regional Office as described more fully below for the first year after you would leave DER. 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 employe. 51 Pa. Code 1.1. Mr. Alan Snelson August 28, 1984 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 before the governmental body or bodies with which you have been deemed to have been associated, that is the Bureau - Regional Office, including, but not limited to, negotiations or renegotiations on contracts with the Bureau - Regional Office; 2. Attempts to influence the Bureau - Regional Office; 3. Participating in any matters before the Bureau - Regional Office on any case, matter, or contract 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 - Regional Office in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing as preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, to be submitted to or reviewed by the Bureau - Regional Office, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you would leave DER, you should not allow your name to appear on proposals, documents, or bids, either as the preparer or as the person who will provide technical assistance on these documents, proposals, bids, etc., which will be presented to the Bureau - Regional Office or which will be reviewed by the Bureau - Regional Office. 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 - Regional Office, is not prohibited as "representation ". See Kotalik, 84 -007. You may, even under the above restrictions, assist in the preparation of any documents presented to the Bureau - Regional Office and assist in the preparation associated with appearances to be made by a person other than yourself before the Bureau - Regional Office so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau - Regional Office to secure information which is available to the general public. See Cutt, 79 -023. Mr. Alan Snelson August 28, 1984 Page 5 Likewise, 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. This would be true even if your administration of a contract involved dealing with personnel of the Bureau- Regional Office or personnel within DER generally. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: considered a your service the restrict your conduct above. SSC /na As a Regional Solid Waste Operations Supervisor, you are to be "public employee" as defined in the Ethics Act. If you terminate with DER, you would become a former public employee" subject to ions imposed by Section 3(e) of the Ethics Act. If this occurs, should conform to the requirements of the Ethics Act as outlined Further, should you terminate your employment as outlined above, you are reminded that the Ethics Act also requires that as a public employee you must file a Statement of Financial Interests for each year in which you hold the position described above, and 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. 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 full 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. cc: Nicholas DeBenedictis, Secretary, DER Dennis L. Farley, Director, Personnel,DER Sincerely, Itifri f:- /Lei andra S. Christianson General Counsel