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HomeMy WebLinkAbout84-624 LaudenslagerRichard E. Laudenslager R.D.# 1546 Womelsdorf, PA 19567 Dear Mr. Laudenslager: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 October 29, 1984 ADVICE OF COUNSEL RE: Former Public Employee; Section 3(e), Soils Engineer II 84 -624 This responds to your letter of September 18, 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 it is your intention to leave your position with the Commonwealth. You currently serve as a Soils Engineer II in the Soil and Water Conservation Bureau, hereinafter, the Bureau, of the Department of Environmental Resources, hereinafter, DER. Upon termination of your service with DER, it is your intention to practice privately as a consulting geologist. You write to us regarding an Opinion from our Commission as to the areas of practice in which you may engage both as to the location and as to the expertise that you may utilize. You have provided us with a job description and a partial organization chart and we have obtained an outline of the Soil Conservation Districts which are described briefly in your letter. You wish to emphasize two things with respect to your job description. First, you indicate that the position was within pay range 39, the lowest level in the Bureau for engineers, and that all the final descisions on questions were made by the Harrisburg Office. Second, although you worked in several different positions over the years you served with DER, your current position was held for eighteen months and in that position you were responsible for only those eighteen counties in the southeast and central Pennsylvania area which we will refer to in this Advice as Region 6 within the Bureau and Division of Soil Resources and Erosion Control, hereinafter, the Division. Mr. Richard E. Laudenslager October 29, 1984 Page 2 You wish specific responses to the following questions: 1. Whether you may practice erosion and sedimentation control planning which was your area of special expertise while serving with DER; 2. Whether you may practice within other areas of DER such as mining, oil and gas, solid waste management, ect.; 3. Whether your relationship with the Conservation Districts precludes you from either practicing before or subcontracting from them. With respect to this last question, we understand and will assume that your reference to the "Conservation Districts" refers to that eighteen- county area within the Division and Bureau known as Region 6 administered from the Reading, Pennsylvania office where you were stationed. For sake of completeness of this response we will also indicate, in brief form, that while you are employed with DER in the capacity of Soils Engineer II you had responsibility for the following: 1. You were a technical consultant to state and local agencies on soil erosion and sedimentation control matters for planning and for treatment adequacies in the eighteen- county area in eastern Pennsylvania, referred to above and in the rest of this Advice as Region 6; 2. You provided soil erosion sedimentation control expertise to the Department's regional offices and to the county conservation districts in your assigned area; 3. You provided assistance on review of soil erosion and sedimentation control plans submitted to the Department or its designee as part of permit applications and also on plans submitted to conservation districts; 4. You provided assistance on soil erosion and sedimentation control field investigations to departmental inspectors and, when requested, provided technical support to conservation district inspectors. 5. You acted as a liaison between federal, state, and local agencies concerning soil resources protection vis -a -vis DER; and 6. You responded to complaints regarding soil erosion, sedimentation, storm water run -off, and other land- use - caused damages to Commonwealth waters, and public and private property. Mr. Richard E. Laudenslager October 29, 1984 Page 3 Discussion: As a Soils Engineer II 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 de minimus on the interests of another person. Consequently, if you were to terminate or 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. 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 Region 6. Thus, the "governmental body" with which you must be deemed to have been "associated ", should you terminate your employment with DER, would be the Region 6. Therefore, within the first year after you would leave DER, Section 3(e) of the Ethics Act would apply and restrict your activity of "respresentation" of persons or new employer vis -a -vis Region 6. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Region 6 . Likewise, there is no general restriction against your seeking employment and engaging in private Mr. Richard E. Laudenslager October 29, 1984 Page 4 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 Region 6, 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 Region 6, including, but not limited to, negotiations or renegotiations on contracts with the Region 6; 2. Attempts to influence Region 6; 3. Participating in any matters before Region 6 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 Region 6 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 Region 6, constitutes an attempt to influence your former governmental body. See Kilareski, 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 Region 6 or which will be reviewed by the Region 6. The Mr. Richard E. Laudenslager October 29, 1984 Page 5 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 Region 6, 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 Region 6 and assist in the preparation associated with appearances to be made by a person, other than yourself, before Region 6 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 Region 6 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 Region 6 or personnel within DER, generally. See Dalton, 80 -056 and Beaser, 81 -538. Finally, we will respond to your three specific questions as follows: 1. Given the above discussion, you are not restricted under the Ethics Act from practicing erosion and sedimentation control planning, which was your area of specialization with DER, except with respect to Region 6 as outlined above. 2. There are no restrictions on your ability to practice "within other areas of DER such as mining, oil and gas, solid waste management, etc." except with respect to any representation which might be prohibited as outlined above vis -a -vis Region 6. 3. As outlined above, your relationship with the conservation districts, which we assumed to be co- terminus with Region 6 and either practicing before them or subcontracting with them must be guided by the above discussion. If, the conservation districts to which you refer are some entities other than those counties which comprise Region 6 or the office of DER which is headquartered in Reading, please provide us with this factual information and we will respond accordingly. Mr. Richard E. Laudenslager October 29, 1984 Page 6 Conclusion: As a Soils Engineer II, 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, 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. SSC /sfd cc: Nicholas DeBenedictis, Secretary Dennis L. Farley Si erely, Sa dra S. rist anson General Counsel