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HomeMy WebLinkAbout86-513 HolmesMr. Jeffrey S. Holmes 1060 Chatham Park Drive #E Pittsburgh, PA 15216 Dear Mr. Holmes: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 Fehruary lfl, 1986 ADVICE OF COUNSEL 86 - 513 Re: Former Public Employee; Section 3(e), Sanitary Engineer III, Department of Environmental Resources This responds to your letter of January 17, 1986, 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 Department of Environmental Resources. Facts: You are currently employed in the Department of Environmental Resources, hereinafter the Department, as a Sanitary Engineer III. In that capacity, you are assigned to the Department's Rureau of Water Quality Management, Grant Section. You are currently retiring from Commonwealth employment and assuming a position with a hazerdous waste consulting firm. This future employment may require your involvement with various bureaus and sections of the Department. In your position with the Department, you are involved with the U.S. Environmental Protecion Agency's Contruction Grants Program which provides grant funds to eligible municipalities for the constuction of sewage collection, conveyance and facilities. We have reviewed the job description for this position and have incorporated that document herein by reference. Generally, a person in this position performs as follows Mr. Jeffrey S. Holmes February 10, 1986 Page 2 1. Reviews plans of study submitted by municipalities to conduct detailed facility plans as requi red by the EPA regulations. Assures that al 1 areas of envi ronmental and engi neering concern for the specific project will be adequately studied to ensure the project will subsequently qualify for grant funding. 2. Reviews completed facility plans. Plan contents are compared to the previously approved plan of study and EPA /DER requirements. Approval of the facility plan allows the project to proceed to design. 3. Reviews detailed engineering drawings and specifications to assure design c onplies with EPA /DER requirements and follows accepted engineering practice. 4. Reviews construction permit application and drafts permit documents. Approval of the plans, specificiations and permit allows the project to be bid. 5. Reviews bid documents including bid tabulation and proposal forms to assure bidding procedure meets EPA regulations. Approval allows construction contracts to be awarded. 6. Reviews construction progress through individual site visits and joint inspections with the ll. S. Amy Corps of Engineers. 7. Attends meetings with engineers, municipal officials, concerned citizens and other regulatory personnel to supplement the review of items 1 through 6 above. 8. Monitors progress of project planning, design and construction through the review of correspondence, reports, conducting meetings and field investigations and takes whatever measures are necessary to keep a project on schedule. 9. Reviews post- construction reports to determine if project meets its goals and operates in compliance with its permits. Takes additional action to assure remedial action is undertaken if a project does not meet its standards. 10. Recommends and follows up with enforcement action when needed to force recalcitrant municipalities eligible for EPA funding to proceed with their requi red water pollution control projects. Legal documents are drafted and court appearances may be required. 11. Develops projects priority ratings for specific projects to determine if they qualify for funding. Mr. Jeffrey S. Holmes February 10, 1986 Page 3 You indicate that your new position would involve consulting work for industrial clients concerning their hazardous waste management problems, evaluation of existing treatment facilities, and involvement with permit applications. Your position would also involve interpretation of federal regulations and negotiations with the Department of Environmental Resources concerning these matters. You have requested the advice of the State Ethics Commission as to any restrictions that may be imposed upon your contemplated activity within the purview of the State Ethics Act. Discussion: At the outset, it must he noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a Sanitary Engineer III for the Department, 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. 65 P.S. r$402; 51 Pa. Code , 51.1. 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. See Laudenslager, 84 -624; Showman, 85 -552. Consequently, upon termination of this employment, you would become a "former puhlic 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 the Department. 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 he deemed to have been associated during his tenure of public office or employment extends 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) . Mr. Jeffrey S. Holmes February 10, 1986 Page 4 From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised in the Pittsburgh Regional Office of the Department, hereinafter the Office. This is so, especially in light of the independent job responsibilities that you carried out and as set forth in your job description. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Office. Therefore, within the first year after you woul d 1 eave the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Office. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Office. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department. We do note, 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 and upon departure from the public sector, that individual should not he 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. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction 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 associated, (that is the Office), including, but not limited to, negotiations or renegotiations on contracts with the the Office; 2. Attempts to influence the Office; Mr. Jeffrey S. Holmes February 10, 1986 Page 5 3. Participating in any matters before the Office over which you had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or employer before the Office in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or hid, if submitted to or reviewed by the Office, constitutes an attempt to influence your former governmental body. See Ki l areski , 80 -054. Therefore, within the first year after you leave the Department, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Office so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office. Once again, however, your activity in this respect should not be revealed to the Office. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Office your representation of, or work for your new employer. Finally, 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. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a Sanitary Engineer III, you are to he considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department of Environmental Resources, 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. Your governmental body for the purpose of the one year representation restriction is the Pittsburgh Regional Office of the Department. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Mr. Jeffrey S. Holmes February 10, 1986 Page 6 Pursuant to Section 7(9)(ii), this Advice is a complete 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 w i l l be scheduled and a formal Opinion from the Commission will he 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. Sincerely, ohn J. C•• no Gener. ounsel