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Home My WebLink About81-638 GrinderRE: Section 3(e), DER Dear Mr. Grinder: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 November 10, 1981 ADVICE OF COUNSEL John Grinder Diversified Consulting Services P.O. Box 276 Williamsport, PA 17703 81 -638 This responds to your letter of October 7, 1981, in which you requested an opinion from the Ethics Commission. Issue: You asked for advice as to whether a former employee of the Pennsylvania Department of Environmental Resources (DER) can represent a municipality before DER. Facts: You informed us that you were an Administrative Assistant I in DER Water Quality Management, Grants and Permits Section, Williamsport Regional Office. Your duties enumerated in your official job description included reviewing and approving grant applications as well as contracts between municipalities and engineering firms. You also reviewed and approved bid tabulations for reasonableness to ensure that the contractor selected was the lowest responsible bidder. You reviewed and approved project change orders for eligibility for grant participation or payment. The work done in your office was reviewed by the DER Central Office. You left DER in September of 1981 and began working with Diversified Consulting Services, Inc.; you are part owner of this firm, i.e. 20% owner. Diversified helps municipalities reduce costs on sewage projects by assisting in completing permit applications, submitting these applications to DER and managing grants made by DER to local sewer authorities. You have already assisted in preparing a plan to DER and signed a letter regarding this application, as grant manager. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania John Grinder November 9, 1981 Page 2 Discussion: The Ethics Act, codified at 65 P.S. Section 401 et seq., places restrictions on the conduct of public employees and former public employees. As used in the Act, "public employee" includes any person employed by the Commonwealth who is responsible for taking or recom- mending non - ministerial official action with regard to administering or monitoring grants or subsidies. 65 P.S. Section 402. You were employed by the Commonwealh to administer grants in the Bureau of Water Quality Management. Although you were guided by DER rules, as well as federal regulations, you exercise non - ministerial authority approving contracts, bid tabulations, change orders and in reviewing projects for compliance with regu- lations. The fact that your work was reviewed at a higher level does not mean that you lacked authority to take or recommend action of a non - ministerial nature. See 51 Pa. Code Section 1.1 for the definition of "non- ministerial." Under the Ethics Act no former 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. Section 403(e). This section does not absolutely preclude a former public employee from working for or forming a business such as Diversified Consulting. You may not however, make a personal appearance before the governmental body with which you were associated, attempt to influence that body, lobby them or participate in any manner in any case over which you had supervision, direct involvement or responsibility while employed by the governmental body. In a prior decision the Ethics Commission held that a former public employee may not sign a bid proposal submitted to his former governmental body. Kilareski, 80 -054. Accordingly, you may not sign proposals or letters submitted to your governmental body or on behalf of municipalities for one year after September, 1981. You have already signed a letter relating to a proposal - this is not acceptable under the Act. You may not sign any such proposal or letter in the future. John Grinder November 9, 1981 Page 3 The question of the extent of the "governmental body" with which you were associated must also be iden- tified, because it is only before this body that you are prohibited from "representing" any person. In your instance, your recommendations on action had effect most directly within the Williamsport Regional Office. From the chart provided with your request we can discern no real influence, impact etc. vis -a -vis DER in general. As a consequence, we find the "governmental body with which you were associated" to be limited to the Williams- port Regional Office of DER. Even during the one year after September, 1981, however, you may represent a municipality in a third forum such as a state court of a federal agency, make inquires of the Williamsport Office or DER similar to those made by the general public and utilize the knowledge gained while working for DER. You may participate in administering and monitoring grants, including being paid under same, awarded by DER subject to the limitations outlined above. Kilareski, 80 -054. You may assist in the preparation of such proposals, grant applications, etc. so long as your name does not appear on these items which may be processed, reviewed by or submitted to the Regional Office of DER in Williamsport. Finally, you assert you should not be precluded from representing municipal clients before any body because they are not "persons ". The term person is defined in the Ethics Act as: A business, individual, corporation, union, association, firm, partnership, committee or group of persons. 65 P.S. 402. A municipal client must be considered an organization or group of persons in the common ordinary sense of these words. It would violate the basic concept and aim of Section 3(e) of the Ethics Act to permit representation of public (political subdivision) clients while prohibit- ing representation of private clients. The term "person" appears, in my opinion in Section 3(e) not to indicate a legislative intent to permit representation of other governmental bodies as you suggest. John Grinder November 9, 1981 Page 4 Conclusion: While employed by DER you were an Adminis- trative Assistant I in charge of reviewing grant appli- cations and ensuring compliance with state and federal regulations. You exercise non - ministerial authority with regard to administering grants and are a former public employee. As a former public employee you may provide consulting service to municipalities. You may not represent a client by way of: (I) appearing personally before the Williamsport Regional Office of DER; (2) attempting to influence the Williamsport Regional Office of DER; (3) lobbying this office; (4) participating in any matter over which you had direct involvement or supervision while employed by the Williamsport Regional Office of DER; (5) signing a grant application or proposal or letter relating to same submitted by or on behalf of any client of the Williamsport Regional Office to DER. You may, however: (1) represent clients before any agency other than DER; (2) make inquiries of DER including its Williamsport Regional Office similar to those made by the general public; (3) utilize the knowledge gained while with DER; (4) administer a grant from DER if you do not sign the grant request or related items submitted to the Williamsport Regional Office of DER, for example. John Grinder November 9, 1981 Page 5 You have already signed a letter relating to a grant request submitted to the Williamsport Regional Office of DER. This is prohibited activity under (5) above and must not re -occur within the year following your departure from DER. 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 Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /lma cerely, 7836 cc: Art Feld, Assistant Attorney General Department of Environmental Resources Bureau of Legal Services Andy Palestine Peter Duncan, Deputy Secretary Office of Resources Management andra ristianson General C•unsel