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HomeMy WebLinkAbout84-621 LuciV. Vincent Luci 204 Oak Road Clairton, PA 15025 Dear Mr. Luci: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 October 19, 1984 ADVICE OF COUNSEL 84 -621 RE: Former Public Employee; Section 3(e), Solid Waste Regional Facilities Supervisor, Department of Environmental Resources This responds to your letter of September 5, 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 on July 23, 1984, you resigned your position as a Regional Facilities Supervisor with the Bureau of Solid Waste Mangement in the Pittsburgh Regional Office of the Department of Environmental Resources, hereinafter, DER. As a Regional Facilities Supervisor for the Bureau of Solid Waste Mangement, hereinafter, the Bureau, in the Pittsburgh Regional Office, hereinafter, the Regional Office you were responsible for waste disposal permit applications. An application for a permit may have been for storage, processing, or disposal of hazardous and non - harzadous waste. Upon application, an evaluation by your technical staff, which you supervised, and then yourself would be undertaken. After such an evaluation and review you, along with the technical staff personnel, would recommend issuance or denial of the permit application. The final decision on the application, would be made by the Regional Solid Waste Manager. We should note, however, that you did, along with technical staff, make recommendations on the applications for such permits. As a prerequisite for other employment you have been asked by your potential employer, Kipin Industries, hereinafter Kipin to request an opinion from the State Ethics Commission as to what restrictions, if any, you may have in dealing with DER. You indicate that Kipin is involved with processing of hazardous and non - hazardous waste for - beneficial recycling and reuse. Kipin has projects located throughout the United States, some of which are in Pennsylvania. The project sites in Pennsylvania would be your "concern." V. Vincent Luci October 19, 1984 Page 2 We should note that we have reviewed both the job description and the classification specifications for your class title as well as the organization chart applicable to the Regional Office in which you served. We will use these items in the course of our analysis which follows. Discussion: As a Solid Waste Regional Facilities Supervisor for DER, you were 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 a de minimus nature on the interests of another person. Consequently, upon termination of this employment you became 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 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 Pittsburgh Regional Office, hereinafter, the Regional Office. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment with DER would be the V. Vincent Luci October 19, 1984 Page 3 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 Regional Office . The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Regional Office. Likewise, there is no general restriction against your seeking employment 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 or client before the Regional Office as described more fully below for the first year after you 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. 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 Regional Office, including, but not limited to, negotiations or renegotiations on contracts with the Regional Office; 2. Attempts to influence the Regional Office; 3. Participating in any matters before the 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 Regional Office in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. V. Vincent Luci October 19, 1984 Page 4 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 Regional Office, constitutes an attempt to influence your former governmental body. See Kil areski , 80 -054. Therefore, within the first year after you 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 Regional Office or which will be reviewed by the 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 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 Regional Office and assist in the preparation associated with appearances to be made by a person other than yourself before the 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 Regional Office to secure information which is available to the general public. See Cutt, 79 -023. 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 Regional Office or DER personnel within generally. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a Solid Waste Regional Facilities Supervisor, 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. Further, if you have or should 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 held the position described above, and for the year following your termination of service. V. Vincent Luci October 19, 1984 Page 5 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. S /sf cc: Nicholas DeBenedictis, Secretary Dennis L. Farley, Director Sincerely, antra S. Chris General Counsel