HomeMy WebLinkAbout86-572 AdamsMs. Cynthia Adams
6600 York Road
Baltimore, MD 21212
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
June 18, 1986
ADVICE OF COUNSEL
86 -572
Re: Former Public Employee; Section 3(e), Air Quality Specialist, Department
of Environmental Resources
Dear Ms. Adams:
This responds to your letter of April 28, 1986, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment following your termination of service with the
Pennsylvania Department of Environmental Resources.
Facts: You advise that you are currently employed by the Citizens Program for
the Chesapeake Ray, Inc., a non - profit entity involved in the public education
on the Chesapeake Bay and the Chesapeake Bay clean -up project. Funding for
this corporation is provided primarily by a grant from the Environmental
Protection Agency's Chesapeake Bay Program. This is a federal grant. You
advise that in your capacity with this entity, you will be the Pennsylvania
Coordinator for the Citizens Program. In this respect, you will he providing
the public with information and educational materials about the Chesapeake Bay
and organizing public events on Bay related issues. Part of your
responsibilities will include coordinating with various state agencies
involved in public education in this area. You advise that prior to assuming
your current position, you were employed with the Commonwealth of
Pennsylvania, Department of Environmental Resources as an Air Quality
Specialist. Generally, in this position, you were involved in conducting air
quality inspections on industrial facilities and compiling emission data
related thereto. In your position with the Pennsylvania Department of
Environmental Resources you, in part, were involved in conducting inspections
of commercial and industrial plants, reviewing all facility operations
regarding emmissions, writing technical reports concerning the facts gathered,
Ms. Cynthia Adams
June 18, 1986
Page 2
and making recommendations for appropriate action based upon the
aforementioned inspections. In addition to the foregoing, you were
responsible for investigating air pollution complaints and making appropriate
recommendations regarding the abatement of the air pollution problems observed
or otherwise recommending appropriate enforcement action on violations of the
applicable laws. We have reviewed your job description and have incorporated
that document herein by reference.
You have requested the advice of the State Ethics Commission in relation
to your current position.
Discussion: At the outset, it must be noted that the Ethics Commission may
only, address your question within the purview of the Ethics Act. The
Commission may not and will not offer advice with respect to any duties or
obligations that may be imposed by other provisions of law such as the State
Adverse Interest Act or the Governor's Code of Conduct.
As an Air Quality Specialist for the Pennsylvania Department of
Environmental Resources, hereinafter referred to as DER, you are to be
considered a "public employee" within the definition of that term as set forth
in the Ethics Act and the regulations of this Commission. 65 P.S. §402;
51 Pa. Code §1.1. This conclusion is based upon your job description, which
when reviewed on an objective basis, indicates clearly that you have the power
to take or recommend official action of a non - ministerial nature with respect
to contracting, procurement, planning, inspecting or other activities where
the economic impact is greater than de mi nimus on the interests of another
person. See, Showman, 85 -552.
Consequently, upon termination of this employment, you would become a
"former public employee" subject to Section 3(e) of the Ethics Act. Section
3(e) of the Ethics Act provides that:
Section 3. Restricted activities.
(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.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with DER. Then, we must
review the scope of the prohibitions associated with the concept and term of
"representation ". In this context, the Ethics Commission has previously ruled
that the "governmental body" with which an individual may be deemed to have
been associated during his tenure of public office or employment extends to
those entities where he had influence, responsibility, supervision, or
control. See Ewing, 79 -010. See also Kury vs. Commonwealth of
Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981).
Ms. Cynthia Adams
June 18, 1986
Page 3
From the description and analysis of your duties and responsibilities and
based upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been exercised within the Department's
Bureau of Air Quality Control and the Harrisburg Regional Office. Thus, the
"governmental body" with which you have been "associated" upon the termination
of your employment would be the Bureau of Air Quality Control, hereinafter
referred to as the Bureau and the Harrisburg Regional Office, hereinafter
referred to as the Office. Therefore, within the first year after you would
leave DER, Section 3(e) of the Ethics Act would apply and restrict your
"representation" of persons or new employers vis -a -vis the Bureau and the
Office.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Bureau and the Office. Likewise,
there is no general limitation on the type of employment in which you may
engage, following your departure from DER. We do note, however, that the
conflicts of interest law is primarily concerned with financial conflicts and
violations of the public trust. The intent of the law generally is that
during the term of a person's public employment he must act consistently with
the public trust and upon departure from the public sector, that individual
should not be allowed to utilize his association with the public sector,
officials or employees to secure for himself or a new employer, treatment or
benefits that may be obtainable only because of his association with his
former public employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction, the Ethics
Commission has promulgated regulations to define "representation" as follows:
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
i ncludi ng but not limited to the fol1owi ng activities:
personal appearances, negotiating contracts, 1 obbyi ng, and
submitting bid or contract proposals which are signed by
or contain the name of the former public official or
public employe. 51 Pa. Code 1.1.
The Commission, in its opinions, has also interpreted the term
"representation" as used in Section 3(e) of the Ethics Act to prohibit:
1. Personal appearances before the governmental body or bodies with
which you have been associated, that is the Bureau and the Office, including,
but not limited to, negotiations or renegotiations on contracts with the
Bureau and the Office;
2. Attempts to influence the Bureau and the Office;
Ms. Cynthia Adams
June 18, 1986
Page 4
3. Participating in any matters before the Bureau and the Office over
which you had supervision, direct involvement, or responsibility while
employed by DER;
4. Lobbyi ng, that is representing the interests of any person or
employer before the Bureau and the Office in relation to legislation,
regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044.
The Commission has also held that preparing and signing a proposal,
document or bid, or listing your name as the person who will provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
the Bureau and the Office, constitutes an attempt to influence your former
governmental body. See Ki l areski , 80 -054. Therefore, within the first year
after you leave DER, you should not engage in the type of activity outlined
above.
You may, assist in the preparation of any documents presented to the
Bureau and the Office so long as you are not identified as the preparer. You
may also counsel any person regarding that person's appearance before the
Bureau and the Office. Once again, however, your activity in this respect
should not be revealed to the Bureau and the Office. Of course, any ban under
the Ethics Act would not prohibit or preclude you from making general
informational i nqui ries of the Bureau and the Office to secure information
which is available to the general public. See Cutt, 79 -023. This, of course,
must not be done in an effort to indirectly influence these entities or to
otherwise make known to the Bureau and the Office your representation of, or
work for your new employer.
Finally, the Commission has concluded that if you are administering an
existing contract as opposed to negotiating or renegotiating a contract, your
activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and
Beaser, 81 -538.
Additionally, we note that Section 403(b) of the State Ethics Act would
prohibit any public employee or public official from accepting a position of
employment if said position has been offered based upon the understanding that
the official conduct of the employee or official, while working for his former
governmental body, was influenced by such offer. See 65 P.S. §403(b).
Conclusion: As an Air Quality Control Specialist, you are to be considered a
"public employee" as defined in the Ethics Act. Upon termination of your
service with the Pennsylvania Department of Environmental Resources, you would
become a "former public employee" subject to the restrictions imposed by
Section 3(e) of the Ethics Act. As such, your conduct should conform to the
requirements of the Ethics Act as outlined above. Your governmental body for
the purpose of the one year representation restriction is the Bureau of Air
Quality Control and the Harrisburg Regional Office.
Ms. Cynthia Adams
June 18, 1986
Page 5
Further, should you terminate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests for the year following your termination of
service.
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 al 1 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.
• Final ly, i f you disagree with this Advice or i f 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.
John J o no
Ge - al Counsel