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HomeMy WebLinkAbout81-568 McKernanSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 May 11, 1981 ADVICE OF COUNSEL Gerald F. McKernan Water Quality Specialist Bureau of Water Quality Management 736 W. 4th Street Williamsport, PA 17701 RE: Public Employee, Conflict of Interest Dear Mr. McKernan: 81 -568 This responds to your letter of February 20, 1981, in which you as a Water Quality Specialist, requested an opinion from the Ethics Commission. Issue: In your letter you request advice as to whether a Water Quality Specialist employed by the Department of Environmental Resources may serve as a Sewage Enforcement Officer for a local agency or municipality. Facts: You informed us that you are now working for the Depart- ment of Environmental Resources (DER) as a Water Quality Specialist (Specialist) in the Bureau of Quality Operations Section. A Specialist's duties include inspecting investiga- ting and surveying industrial waste treatment facilities, sewage treatment facilities, mineral preparation plants and deep mines. The inspections and investigations involving regulation of the facilities to ensure compliance with state laws and regulations. A specialist may be called upon to prosecute violators of these regulations before a District Magistrate. As Sewage Enforcement Officer (Officer) is certified after sucessfully completing an examination prepared by DER. Officers are employed by municipalities or local agencies to issue sewage system permits within the jurisdiction of the munici- pality or agency. An Officer issues or denies permits in accordance with DER standards and can revoke that violate DER regulations. An Officer's work is reviewed by the Bureau of Water Quality Planning Section. Discussion: The Ethics Act, 65 P.S. §401 et seq. defines public employee as any individual employed by the Commonwealth or a political subdivision who is responsible for taking or Gerald F. McKernan May 11, 1981 Page 2 recommending official action of a non - ministerial nature with regard to inspecting, licensing, regulating or auditing any person or any other activity where the official action has a greater than de rrs_nimus economic impact on the interests of any person. 65 P.S. §402. It is 3 :ent that a Specialist is a public employee subject to the tthics Act because a Specialist's primary duty is inspecting and 3egulating various waste treat- ment facilities. Equally obvious is the Officer's status as a public employee. The Officer is employed by an agency or a municipality to regulate treatment plants in that jurisdiction. The Ethics Act does not, however, prohibit a Specialist from serving as a local Officer as a conflict of interest. The Commission has stated that there is a conflict when an indivi- dual represents two persons who have interests adverse to each other. A1tano 80-007. The DER and a local entity charged with enforcing water quality do not have adverse interests. You should be aware that the Act does impose certain restrictions on your conduct as a public employee. These restrictions apply to your conduct as both a Specialist and an Officer. Section 3(a) of the Act provides that no p;blic employee i oyee shall use his public employment or confidential nfor- mation received through his public employment to obtain financial gain. You may not use your employment or confidential information obtained as a DER Specialist to obtain employment as a local Officer, nor may you use your post as an Officer or confidential information received in that post in your work with DER. 65 P.S. §403(a). Further, no one may offer you anything of value based on any understanding that your official action will be influenced thereby: 65 P.S. §403(b). A thing of value may be a promise of future employment. Thus, you may not accept a promise of employment as an Officer based on any understanding that your official actions as a DER Specialist would be influenced thereby. No one may offer you anything of value to influence your official acts as either a DER specialist or a local officer. The Act also limits your ability to contract with govern- mental bodies. 65 P.S. §403(c). No public employee, a member of his immediate family or a business in which the employee is an officer, director, owner or holder of stock valued at more than five percent of the equity at fair market value may enter into any contract valued at more than $500 with a governmental body unless the contract is awarded in an open and public process. Id. The Commission has interpreted the phrase "governmenfl body" to mean governmental body with which you are associated. You are associated with DER and with any local agencies or municipalities that employ you as a Sewage Enforce- ment Officer. You may contract with municipalities freely because they are not associated with the DER. The open and Gerald F. McKernan May 11, 1981 Page 3 public process requirements of Section 3(c) would apply if you, your immediate family or a business with which you are associated, were to seek to contract with the DER or the local government bodies. One final area of possible conflict must be addressed. Your work as a local Sewage Enforcement Officer is reviewed by the Bureau of Water Quality Management's Planning Section. The Planning Section is distinct from the section you are employed in, the Operations Section. Accordingly, there appears to'be little possibility that as a DER employee, you will review work you would do as an Officer in your employment with the DER: You should be aware that reviewing your own work, however, would constitute at least the appearance of a conflict of interest forbidden by Section 1 of the Act, 65 P.S. §401. Another DER employee should review work you do as a municipal sewage officer. Conclusion: A DER Water Quality Specialist and you as a local Sewage Enforcement Officer are a public employee involved with inspecting and regulating various waste treatment facilities. There is no inherent conflict of interest in a DER Specialist serving as a local Sewage Enforcement Officer. You may not use your positions as a DER Specialist or as a local Officer to obtain financial gain. For example, your post as a DER Specialist may not be used to obtain work as a local Officer. You may not use confidential information received in either public employment to obtain financial gain, you may not use confidential information received as a DER specialist to obtain employment as a local Officer. You may not accept anything of value, including the promise of future employment as a local Officer, based on any under- standing that your official actions as either a DER Specialist or a local Officer would be influenced thereby. You, your immediate family or a business in which you have an interest may not contract with the governmental bodies with . which you are associated - DER and local governments - for greater than $500 unless the contract is awared in an open and public process. The requirement of an open and public process does not apply to your employment contract with a local govern- ment because DER is a distinct body from the local government. The prohibition against conduct constituting the appearance of a conflict of interest would be violated were you to review work you did as a local government as a DER specialist. Should you be required to review work you did for a local government another DER employee should perform this evaluation. 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 Gerald F. McKernan May 11, 1981 Page 4 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a requestor indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, andra S. ristianson General Counsel