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HomeMy WebLinkAbout83-568 ErcoleMr. J. Anthony Ercole, Director Bureau of Mining and Reclamation Department of Environmental Resources P.O. Box 2063 Harrisburg, PA 17120 Dear Mr. Ercole: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 27, 1983 ADVICE OF COUNSEL 83 -568 RE: Representation; Restrictions; Section 3(e); DER, Bureau of Mining and Reclamation This responds to your letter of January 24, 1983, in which you requested advice from the State Ethics Commission. Issue: You would like to know what restrictions are imposed on you by the Ethics Act upon your retirement from the Department of Environmental Resources as Director of the Bureau of Mining and Reclamation. Facts: You retired from your position as Director, Bureau of Mining and Reclamation (BMR) in the Department of Environmental Resources (DER) on February 25, 1983. You had held that position since October, 1977. In your capacity as BMR Director, your duties included administration and enforcement of various Commonwealth statutes, promulgation of guidelines, policies and procedures regarding service mining, coordination of interagencies, intergovernment, and intradepartmental implementation of policies and program issues, and supervision in a professional scientific staff. In 1980, the permitting, inspection, and enforcement functions of the BMR were decentralized to five district offices, and you have been responsible for supervision of the division chiefs, assistant director, statistical unit, and your secretary. Until April, 1982, you had direct supervision of the District Mining Managers, but in June, 1982, the district offices came under the daily supervision of the regional directors. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. J. Anthony Ercole, Director June 27, 1983 Page 2 Also, prior to August, 1982, you were supervised by the Deputy Secretary for Environmental Protection, but since August, 1982, you had been supervised by the Director of the Office of Environmental Energy Management (EEM). You are contemplating accepting a position within the mining industry, and would like to know what restrictions are to be imposed upon you by the Ethics Act in your future endeavors. Discussion: While employed by the Commonwealth as Director of the Bureau of Mining and Reclamation, you were a "public employee" and, therefore, upon termination of your service with the State, you became a "former public employee." The Ethics Act regulates the conduct of both present and former public employees to assure the public of the independence and impartiality of its servants. Therefore, you must be aware of the restrictions upon representation which relate to "former public employees" as delineated by Section 3(e) of the Ethics Act, which provides: (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(e). With this restriction in mind, a discussion of what the term "representation" means is important. In general, the Commission has determined that the prohibitions of Section 3(e) and the term "representation" extend to such activities as: 1. personal appearances before the governmental body with which you were associated, including, but not limited to, negotiation on contracts with that body; 2. attempts to influence that body; 3. participating in any manner before your former governmental body in any case over which you had supervision, direct involvement, or responsibility while employed by the governmental body; 4. lobbying, that is, representing the interest of any person before . that governmental body to influence that body in relation to legislation, regulations,. etc. See Kilareski, 80 -054. Mr. J. Anthony Ercole, Director June 27, 1983 Page 3 Opinions of the Commission indicate that a former public employee may appear in a third quorum such as state or federal court, may make general informational inquiries of the nature made by the public of their former governmental body, and may utilize the knowledge and expertise gained in their tenure as public employees, except as set forth above. You may, in addition, administer any contracts, but not negotiate or re- negotiate same, between your formal governmental body and your current employer which exist or which are awarded in accordance with the above restrictions. Indeed, any restrictions relating to representation as outlined above, relate only to the "governmental bodies" with which you may have been "associated" while employed by the Commonwealth. The restrictions, as outlined above, relate only to those governmental bodies, and any contacts with members of the legislative or executive branches, or Commonwealth Departments, Bureaus, or employees other than the governmental body with which you were associated are not restricted. Likewise, purely social or informational contacts with persons in the governmental bodies with which you were associated or otherwise are not restricted. It remains to be determined exactly which "governmental bodies" you are to be deemed to have been "associated with" to which the above restrictions on representation would apply. Under the facts and the organizational charts which you have presented to the Commission, we find that the governmental body with which you have been associated include the Bureau of Mining and Reclamation (BMR), the Office of the Director of Environmental Energy Management (EEM), and the Office of the Deputy Secretary for Environmental Protection. Thus, the restrictions as enumerated above, must be observed from February 25, 1983 to February 25, 1984, in relation to the Bureau of Mining and Reclamation and the Office of the Director of Environmental Energy Management and his office and subordinate staff. With regard to the Office of the Deputy Secretary for Environmental Protection, the one -year restriction will end in August, 1983, because in August, 1982, the Deputy Secretary ceased to be your immediate supervisor. Therefore, until August, 1983, the restrictions on representation, as enumerated above, shall, in addition to those lasting until February 24, 1984, apply to the Deputy Secretary for Environmental Protection, his office, and his subordinate staff. If your contact with the above groups, individuals, or offices is merely designed to discuss matters or issues or obtain information available to the general public, such activity does not fall within the scope of restricted representation. You should be aware, however, that the Commission has held that within the scope of No. 1, outlined above, a former employee may not leave his position and then sign and submit bid proposals using his own name where these will be submitted to or reviewed by his former governmental body or bodies within a one -year period. Dalton, 80 -056. The fact that you might -Mr. J. Anthony Ercole, Director June 27, 1983 Page 4 sign or prepare a bid proposal, or that your name might appear as an employee who will serve on the contract if awarded, is within the prohibition of an "attempt to influence" the former governmental body or bodies with which you were associated. Prior Commission Opinions make it clear that you may not prepare and sign as preparer and file such a proposal or be listed on same as technical advisor, support staff, etc., under these circumstances. You may, however, assist in preparing such items where another person signs as the preparer, but the mere fact that your name may appear thereon or may be referred to as someone who will work on the project or someone who will provide technical assistance is within the scope of "attempting to influence" your former governmental body, and, as such, is prohibited for the one -year period. Conclusion: You are a former public employee and your conduct as such is to be guided by this Advice. You may not, for a one -year period following departure from state service, engage in the activities outlined above. Specifically, you may not: 1. personal appearances before the governmental bodies• with which you were associated, that is the Bureau of Mining and Reclamation, the Office of the Director of Environmental Energy Management, and the Office of the Deputy Secretary for Environmental Protections; this includes negotiating any contract with those governmental bodies and signing and submitting under your own name any proposals to be reviewed by those bodies or allowing your name be listed in such proposals; 2. attempt to influence the governmental bodies as in number one above, and to include lobbying within that restriction; 3. participate in any manner in any particular case before bodies with which you were associated on a matter or contract over which you had supervision, direct involvement, or responsibility while employed by the governmental bodies; You may, within the purview of the Ethics Act, assist in preparing and writing proposals so long as No. 1 above is met and you may administer existing or future contracts which have been awarded to your current employer within these guidelines. As discussed above, the one -year restriction on representation with regard to the Bureau of Mining and Reclamation and the office of the Director of Environmental Energy Management will end on February 25, 1984. The one -year restriction on representation with regard to the Office of the Deputy Secretary for Environmental Protection will end in August, 1983. Mr. J. Anthony Ercole, Director June 27, 1983 Page 5 You should also note that under Section 4(a) of the Act you are required to file a Financial Interest Statement for the year following your termination of employment with the Commonwealth. See 65 P.S. 404(a). Thus, the Financial Interest Statement for 1983 to 1984 should be filed no later than May 1, 1984. 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 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. CW /rdp cc: Peter S. Duncan, Secretary Department of Environmental Resources Sincerely, %/ Sandra S. Ch''stianson General Cou'sel