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HomeMy WebLinkAbout83-627 DoneganPatricia A. Donegan Solid Waste Specialist Bureau of Solid Waste Management Department of Environmental Resources White Memorial Building Knox, Pennsylvania 16232 Mailing Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 16, 1983 ADVICE OF COUNSEL RE: Professional Engineering Trainee Exam, Recommendation Dear Ms. Donegan: 83 - 627 This responds to your letter of November 15, 1983, in which you requested Advice from the State Ethics Commission. Issue: You ask whether you may secure the recommendation of certain professional engineers to be eligible to take an examination in the near future. Facts: You indicate you are currently employed as a Solid Waste Specialist with the Department of Environmental Resources in the Meadville Regional Office. You also indicate that you would like to take the Engineer - in- Training examination in the near future. A pre- requisite for the examination is that you must be recommended to take the examination by five professional engineers who are familiar with your previous work in the engineering field. Several of the engineers for whom and with whom you have worked and who are thus in a position to provide the necessary recommendations currently have solid waste or hazardous waste projects or clients in the area which you inspect at this time -- Elk and Jefferson Counties. You would like to secure the recommendations of these five professional engineers in order to be able to apply for and to take the examination in question but you wish to secure our determination of whether this constitutes a conflict of interest before doing so. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Patricia A. Donegan December 16, 1983 Page 2 Discussion: We will assume that in your position of a Solid Waste Specialist with the Department of Environmental Resources (DER) you are a "public employee" as that term is defined in the State Ethics Act. It is clear that under the State Ethics Act you may not use your public employment to secure compensation other than as provided by law. See Section 3(a) of the Ethics Act, 65 P.S,4O3(a). However, in the circumstances that you outlined, there does not appear to be any attempt by you to use your current position to secure any financial gain and, therefore, there is no violation of Section 3(a) of the Ethics Act if you were to proceed to secure the recommendations and to take, and hopefully pass, the examination for Engineer -in- Training. The only other provision of the Ethics Act which may be impacted by your question is Section 3(b) of the Ethics Act as outlined below: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). As you can see as a "public employee ", you may not accept anything of value on the understanding that your official judgment would be influenced thereby. Consequently, you could not solicit or secure or accept any recommendation from any of the engineers in question who might have projects within your area of inspection authority on the understanding that if the recommendation is given, certain official judgment which you might be called upon to exercise vis -a -vis those engineers or the clients of those engineers would be influenced. Of course, we do not assume that this occuring or will occur and merely point to this section of the Ethics Act in order to insure that you are aware of this requirement. If, however, even given the fact that the Ethics Act would not preclude your seeking and securing the recommendations of these engineers, except where Section 3(b) of the Ethics Act might be implicated, you might consider securing these recommendations and, if necessary, abstaining from exercising your official judgment -a -vis the five professional engineers from whom you had sought recommendations rather than to absolutely refraining from securing these recommendations. This is especially true where, as here, the securing Patricia A. Donegan December 16, 1983 Page 3 of recommendations for persons who are familiar with your work is a pre- requisite for the examination in question. We do not, however, indicate that it is required by the State Ethics Act that you abstain from reviewing the work or projects of the five engineers from whom you secure recommendations but merely point out that, if you feel required to do so, such abstention would be appropriate in lieu of avoiding requesting recommendations themselves. Conclusion: The Ethics Act would not preclude you from seeking or securing the recommendations that you need to take the Engineer -in- Training examination nor would the Ethics Act place any restrictions on your conduct vis -a -vis those engineers from whom you have secured recommendations other than the requirement that your seeking, securing and acceptance of these recommendations does not violate Section 3(b) of the Ethics Act as outlined 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. SSC /rdp Sincerely, S. ndra S. Chris ian dn General Counsel'