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HomeMy WebLinkAbout86-551 McClellanSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 6, 1986 ADVICE OF COUNSEL Mr. Mark M. McClellan 86 -551 Executive Director Citizens Advisory Council Department of Environmental Resources P.O. Box 2357 Harrisburg, Pennsylvania 17120 RE: Former Puhlic Employee, Temporary Employment By Former Governmental Body Dear Mr. McClellan: This responds to your letter of April 21, 1986, wherein you requested the opinion of the State Ethics Commission. Issue: Whether a former public employee may continue to provide services to his former governmental body after his resignation until a full -time replacement has been obtained. Facts: You advised that you are currently serving as an Executive Director of the Citizens Advisory Council, hereinafter the Council, in the Department of Environmental Resources. The Council is mandated to advise the Governor, the General Assembly, and the Department of Environmental Resources on environmental affairs; to review and recommend revisions of all environmental laws; and to recommend necessary changes within the Department's policies and programs. The Council is an independent body with the sole authority to hire and set the salary of its staff memhers. As Executive Director to the council you are in charge of the day -to -day activities of the organization and are involved in researching, analyzing and issuing recommendations involving complex public policy issues related to environmental protection, resource management issues, and the functions and operations of the Department of Environmental Resources. You are also involved in representing the council before the executive and legislative officials, environmental officials, husiness and industrial groups and the public to explain council actions and positions. We have reviewed your job description for this position and incorporate that document herein by reference. Mr. Mark M. McClellan May 6, 1986 Page 2 Effective May 28, 1986, you will be resigning your position as Executive Director in order to enter the private sector. In this capacity you will be forming a consulting firm to be known as Associated Resource Consultants. Thi s firm wi 1 1 speci al i ze i n environmental consulting and environmental mediation. You further advise that your consulting practice initially wi 11 consist of advising private clients on the development of environmental and energy projects, such as code generation and resource recovery facilities, regulatory interpretation, providing mediation services, and conducting envi ronmental seminars for private organizations. You will not be involved in any other contract with the Commonwealth during this time. You advise that the council will be seeking a new full -time executive director but that a replacement may not be obtained by the council for a period of six to eight weeks after your resignation. As such, the council is interested in contracting with you on a part -time basis to perform the essential administrative functions of the council until such time as a full -time executive di rector is obtained. While you will serve as an administrator primarily involved in handli ng documents and monitoring on -going council activities, you would not be involved in officially representing the council in any formal capacity. Discussion: Initially, it should be noted that this advice has been issued with the approval of the full Commission. As Executive Director to the Citizens Advisory Council in the Pennsylvania Department of Environmental Resources there is no doubt that you are a public employee as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the State Ethics Act. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (e) No former official or public employee shal 1 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). This Commission has been called upon a number of times to interpret the above cited provision of law and has generally determined that this provision would present an absolute prohibition upon an individual's representation of any person, i ncludi ng his own business, before his former governmental body for a period of one year after he terminates public service. In the instant situation we are called upon to determine whether this provision of law would prevent you from continuing to serve your former governmental body after your official resignation from that organization. Officially, you will be Mr. Mark M. McClellan May 6, 1986 Page 3 resigning your position from the Council and thus, would technically become a former public employee. Under normal circumstances and interpretations of the above provision of law, you could not represent yourself in obtaining any contract with that governmental body for a period of one year after you terminate your services. In the instant situation, however, you advise that your service will be in a capacity of continuing as Executive Director until a suitable replacement is found. In affect you would still be serving as a public employee while you have simultaneously initiated a private consulting business. This Commission has previously determined on a number of occasions that the State Ethics Act would not prohibit a public employee from serving in a position of public employment while simultaneously engaging in private business activities. See, Hershock, 85 -016. Of course, the Commission has also required that individuals who simultaneously serve in public positions and private enterprise must avoid all conflicts of interests and otherwise comport with the requirements of the State Ethics Act. We will, therefore, set forth the approrpiate requirements in this respect. While you continue to serve on a part -time basis as the administrative head of the Advisory Council, we believe that you will continue to be a public employee within the definition of the State Ethics Act. Therefore, you must be aware that Section 3(a) of the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law you may not use your public position with the Council in order to obtain any financial gain for your private business enterprise. You may not use confidential information obtained on the Council for similar purposes. Thus, if any matter comes before the Council that involves a client with whom you have a private business relationship, you may not participate in the council 's activities involving such individual or entity. This would include not only the council's decision in relation to such private business entity but the council's administration of any matter that specifically involves that particular entity or individual. Similarly, you may not use any confidential information that you have obtained by virtue of your position on the council to the benefit of any client of your private business entity. In addition to the foregoing, we will also point out in order to be complete, that Section 403(b) of the State Ethics Act provides that no public offici al my accept any thi ng of value, i ncludi ng a promi se of future employment, based upon the understanding that their official action will be influenced thereby. 65 P.S. 403(b). We make reference to this provision of Mr. Mark M. McClellan May 6, 1986 Page 4 law not to imply that there has or will be any implication of the above prohibition but rather in order to provide a complete response to your question. Within the above provision of law, therefore, you may not as the Executive Director of the council take any action on behalf of an individual based upon the understanding that such individual will later employ your private consulting firm. In addition to the foregoing, the State Ethics Act also allows the Commission to address other areas of possible conflict. 65 P.S. §403(d). While we cannot envision all potential areas of conflict that could arise in this situation, you are advised that as a continuing public employee you should be aware of the above provision of law and in the event that a situation develops that may involve a conflict of interests between your private position and your continued public employment, you should address that particular issue to this Commission for resolution. As noted above, the State Ethics Act provides a one year of restriction on former public employees. We have addressed your question in light of this particular restriction and have determined that although you are officially resigning from the Citizens Advisory Council, you will continue to be a public employee within the provisions of the State Ethics Act. Therefore, in the instant situation and based upon the facts of this specific situation, we do not believe that Section 3(e) places any prohibition upon your contemplated activity. We do note, however, that our decision in this respect is based primarily upon the fact that you have indicated that your service in this part -time capacity will continue until July of 1986. In the event that this service would continue beyond a reasonable eriod of time, P this Commission . would not reach the same result as such a continued part -time employment would appear to be an arrangement which would effectively evade Section 3(e) of the State Ethics Act. That is, this Commission could not condone a situation where through the arrangement of a continued method of part -time employment, Section 3(e) could effectively be avoided. In the instant situation we do not believe that this has occurrred and because of the temporary nature of your continued association with the council, we do not believe that 3(e) is currently applicable. We also note that we are assuming for the purposes of this Advice, that your compensation and the benefits received for this temporary assignment will be reasonably related and proportioned in accordance with the compensation that you previously received in this position. In addition to the foregoing, we note that the one year restriction set forth in Section 403(e) of the Act cited above, will be begin with your final termination of service from the council. That is, your one year period w i l l begin to run after your temporary duties with the council have been completed. This is in accord with our finding that your have continued in this position to serve as a public employee. In the context of this advice we will not set forth all of the restrictions that are applicable under Section 403(e) of the Act and you may wish to seek the additional advice of the Commission in relation to the 403(e) restrictions that are applicable after your final termination of service. Mr. Mark M. McClellan May 6, 1986 Page 5 Conclusion: Section 403(e) of the State Ethics Act will not prohibit a public employee from continuing on a part -time basis to serve his former governmental body until his permanent replacement is obtained by that governmental body. This decision, however, is based upon the fact that such temporary service will be for a resonable period of time and the compensation received for such service will be proportioned in relation to the compensation that said individual received while employed full -time. The one year representation restrictions are calculated in this situation from the point in time when such temporary service is terminated and not from the time of your official resignation. 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. Joh . Conti no General Counsel