HomeMy WebLinkAbout83-604 WebberMary T. Webber
842 Brian Drive
Enola, PA 17025
Dear Ms. Webber:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
October 20, 1983
ADVICE OF COUNSEL
RE: Representation; Restrictions; Section 3(e)
83 -604
This responds to your letter of August 8, 1983, in which you requested
advice from the State Ethics Commission.
Issue: As a former public employee for the Department of Labor and Industry
and the Department of Environmental Resources, you ask what restrictions are
imposed upon you under the Ethics Act.
Facts: Until August 19, 1983, you served as Deputy Secretary for Policy and
Legislation in the Department of Labor and Industry (L &I). You had served in
that position since February, 1983, and in that capacity, you reported
directly to the Secretary.
During the period from June, 1980 through February, 1983, you served as
Special Deputy Secretary in the Department of Environmental Resources (DER),
and you reported directly to the Secretary. In your capacity as Special
Deputy Secretary with DER, you served as a DER Representative on the following
bodies:
1. the Pennsylvania Emergency Management Council (PEMC);
2. the State Hazardous Waste Facilities Citing Committee (HWFS);
3. the Nursing Home Loan Board (NHLB);
4. the Transportation Advisory Committee (TAC); and
5. the Coal Task Force (CTF).
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mary T. Webber
October 20, 1983
Page 2
You are also responsible for supervising the administrative functions of the
Environmental Quality Board, which is a rule making body, and the
Environmental Hearing Board, which is a quasi - judicial body. You were not an
ex officio member of either Board, however.
Having served in so many capacities, you are concerned with what
restrictions the Ethics Act places upon you as a former public employee, and
you have thus, requested Advice from the State Ethics Commission.
Discussion: In your capacities with both the Department of Labor and Industry
and DER, you were a "public employee" and probably a "public official" within
the meaning of those terms as defined by the State Ethics Act. See 65 P.S.
402. As a former public employee /official, your conduct is regulated by
Section 3(e) of the 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).
In previous opinions, the Commission has held that the scope of an
employee's governmental body or bodies is that body or bodies where the former
public employee /official was capable of asserting influence, responsibility,
or control; or those bodies to which he or she made recommendations. See
Ewing, 79 -010; Seltzer, 80 -044; and Alexander, 82 -506. In your case, the
"governmental bodies" with which you were associated include:
1. the Department of Labor and Industry;
2. the Department of Environmental Resources;
3. the Pennsylvania Emergency Management Council;
4. the State Hazardous Waste Facility Citing Committee;
5. the Nursing Home Loan Board;
6. the Transportation Advisory Committee; and
7. the Coal Task Force.
Mary T. Webber
October 20, 1983
Page 3
Also, in light of your important administrative duties with regard to the
Environmental Quality Board and the Environmental Hearing Board, those bodies
would also be included within the Commissions' interpretation of the scope of
your previous governmental bodies. Thus, you may not represent any person
before any of the above named bodies or their personnel for a period of one
year from the termination of your employment at either DER or the Department
of Labor and Industry. In your case, you would be precluded from representing
any person before the Department of Labor and Industry from the period of
August, 1983 through August, 1984. With regard to the Department of
Environmental Resources and the other bodies which you served while working
for DER, you would be precluded from representation before any of those bodies
. for the period of February, 1983 through February, 1984.
The Commission has interpreted the term "representation" to preclude, for
the one year period relative to the governmental bodies with which you were
associated, here those bodies listed above (for the respective and applicable
periods) the following activities:
A. personally appearing before any of those bodies, including but not
limited to the appeals process;
B. attempting to influence any of those bodies or their personnel;
C. participation during either of these one year periods before the
respective bodies in any matter before the applicable in a specific
case, matter, or contract over which you had supervision, direct
involvement, or responsibility while employed by the Commonwealth.
This prohibition relates to the above named governmental bodies
only; it does not preclude your participation on all matters over
which you had responsibility so long as that participation does not
include representation as enunciated herein before any of the above
named governmental bodies;
D. lobbying, that is, representing the interest of any person before
any of the governmental bodies with which you were associated for
the one year period as to legislation, regulations, etc. Morris,
80 -039; Russell, 80 -048; and Masters, 81 -506.
While these restrictions apply to you for the one year period following
your termination of service with the Department of Labor and Industry (from
August, 1983 through August, 1984), and for the one year period following your
termination with DER (February, 1983 through February, 1984), you may,
nevertheless, engage in the following activities within either of these one
year periods:
Mary T. Webber
October 20, 1983
Page 4
1. administer, rather than negotiate or re- negotiate, any contract or
proposal that exists or is to be awarded to your current employer or
client so long as the contract is awarded without your name being
included on the proposal (as preparer or otherwise) and awarded
without your personal "representation" as outlined above in Sections
A through D above .
2. make general informational inquiries of any of the bodies with
which you were associated as long as no attempt is made to influence
any of those bodies as prohibited above.
3. utilize the knowledge and expertise gained during your tenure as a
public employee /official except as outlined above.
4. appear and represent any person on behalf or any client or new
employer before any governmental body other than the ones enumerated
above.
You should be aware, as discussed above, that whether or not you are
personally precluded from representating a client before any of the
governmental bodies with which you were associated, that restriction is
personal to you and does not extend to other members of your firm. Morris,
80 -039. Your firm or your clients may, therefore, receive the benefit of your
expertise even though you may not personally represent your firm or any of
your clients personnally before any of the governmental bodies with which you
were associated.
Finally, to clarify the phrase "attempting to influence any of those
bodies or their personnel ", the Ethics Act prohibits engaging in even the
appearance of a conflict of interest, and in this regard, you must avoid
participating in lobbying, for example, as to any matter, case, or bill over
which you had supervision, direct involvement, or responsibility while
employed by the Department of Labor and Industry or the DER. Masters, supra.
Conclusion: Upon your termination of service with the Commonwealth,
specifically, the Department of Labor and Industry and the DER, you became a
"former public employee or official" subject to the restrictions as set forth
in the Ethics Act. Your conduct should be governed by this Advice, and you
should take note of both the prohibited and allowable activities as discussed
above.
With regard to the one year restriction on representation before the
governmental bodies with which you were associated, the restriction relating
to the Department of Labor and Industry will run from August 19, 1983 through
August 19, 1984. The restriction relating to DER and the bodies upon which
you sat while employed at DER will run from February, 1983 through February
1984.
Mary T. Webber
October 20, 1983
Page 5
To summarize, the governmental bodies with which you were "associated"
and thus precluded from representing any person before, include:
1. The Department of Labor and Industry;
2. The Department of Environmental Resources;
3. The Pennsylvania Emergency Management Council;
4. The State Hazardous Waste Facilities Citing Committee;
5. The Nursing Home Loan Board;
6. The Transportation Advisory Committee;
7. The Coal Task Force;
8. The Environmental Quality Board;and
9. The Environmental Hearing Board.
You are not precluded from "representing" any person before a
"governmental body" other than those listed above.
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
Sincerely,
4 1w k S. Ch stianson
General Counsel