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HomeMy WebLinkAbout86-594 KaufmanJohn G. Kaufman, Esquire Suite 905 One Montgomery Plaza Norristown, Pennsylvania 19401 Dear Mr. Kaufman: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 15, 1986 ADVICE OF COUNSEL 86 - 594 Re: Former Public Employee; Section 3(e), Solid Waste Specialist, Department of Environmental Resources This responds to your letter of July 1, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask on behalf of a client whether the Ethics Act presents any restrictions upon an individual's potential employment following his termination of service with the Pennsylvania Department of Environmental Resources. Facts: You currently represent Empire Sanitary Landfill, Incorporated which has recently hired Alan Stephens as a construction expeditor and future general manager of its landfill site in Lackawanna County, Pennsylvania. Alan Stephens is a former employee of the Department of Environmental Resources, Bureau of Solid Waste Management. Mr. Stephens was employed by the Bureau as a Solid Waste Specialist and was assigned to the Wilkes -Barre Office of the Department of Environmental Resources. Empire Sanitary Landfill Incorporated had previously obtained a permit from the Department of Environmental Resources to establish and operate a landfill. At the current time, you advise that this project is being upgraded to a "double liner landfill project." Mr. Stephens has been hired by Empire Sanitary Landfill in order to insure that the installation of the liner meets the criteria established in Empire's application to the department. He will also be responsible for answering all questions that arise during the installation of the liner and will help the company expedite distribution of technical information to those in need of such information. You further advise that, while an employee of the Department of Environmental Resources, Mr. Stephens had no contact with Empire and was not involved in Empire's John G. Kaufman, Esquire August 15, 1986 Page 2 acquisition of its original landfill permit. As we understand the current situation, Mr. Stephens is not officially involved in Empire's application to upgrade. You have requested the advice of the State Ethics Commission on Mr. Stephens behalf in relation to any prohibitions that may be imposed upon him within the purview of the State Ethics Act. As part of this request, we have reviewed Mr. Stephens classification specification and job description and have incorporated these documents herein by reference. Generally, these items, in part, provide as follows: An employee in this class performs a variety of assignments within an assigned geographical area of the Commonwealth regarding the regulation of facilities to insure compliance with the Commonwealth's rules and regulations governing solid waste management. Work requires the application of these rules and regulations during the conduct of inspections, investigations, enforcement, plan review and permit compliance activities. Work involves inspecting municipal waste disposal sites, demolition waste landfills, sewage sludge disposal sites, industrial waste treatment and disposal facilities; and investigating complaints involving homeowner garbage problems, agricultural waste disposal sites, open dumps, demolition waste landfills, sewage sludge disposal areas, and industrial and hazardous waste facilities. Work includes determining violations of rules and regulations, preparing violation letters, preparing and filing citation forms, preparing Departmental Orders, negotiating settlements of violations, and attending enforcement conferences. Work also includes reviewing permits including plans for hazardous waste disposal sites, industrial waste disposal sites, municipal waste disposal sites, demolition waste disposal sites, industrial or commercial transfer sites, and sewage sludge disposal sites. Work involves providing information to governmental officials, architects, engineers, facility operators and the public on Departmental programs, rules, regulations, policies and procedures; and providing advice to governmental officials, architects, engineers, and facility operators on the disposal of hazardous waste, development of plans, Solid Waste Management Act requirements, Resource Recovery Act requirements, and how to solve operational problems. Work is assigned in the form of specific goals and objectives and the employee exercises considerable freedom in scheduling and completing the work. Work may be reviewed in progress on new or difficult assignments and is reviewed upon completion by a professional superior for completeness, technical accuracy, and quality. In addition to the foregoing, Mr. Stephens job description also indicates that he served on the Solid Waste Safety Committee in order to formulate safety procedures in relation to Solid Waste Management and Disposal. Discussion: At the outset, it must be noted that the State Ethics Commission may only address your question within the purview of the State 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. John G. Kaufman, Esquire August 15, 1986 Page 3 As a Solid Waste Specialist for the Department of Environmental Resources, hereinafter the Department, Mr. Stephens is 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 the job description, which when reviewed on an objective basis, indicates clearly that Mr. Stephens had 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 minimus on the interests of another person. See, Luci, 84 -621, Showman, 85 -552. Consequently, upon termination of this employment, Mr. Stephens became 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 Mr. Stephens was associated while working with the Department. 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). From the description and analysis of the duties and responsibilities and based upon the facts outlined above, Mr. Stephens jurisdiction, responsibility; influence and control appears to have been exercised within the Bureau of Solid Waste Management. Thus, the "governmental body" with which he has been "associated" upon the termination of his employment would be the Bureau of Solid Waste Management, hereinafter the Bureau, including the Wilkes -Barre Regional Office. Therefore, within the first year after Mr. Stephens would leave the Department, Section 3(e) of the Ethics Act would apply and restrict his "representation" of persons or new employers vis -a -vis the Bureau and the Regional Office, hereinafter the Bureau and the Office. See, Showman, 85 -552. Additionally, his governmental body would include the Solid Waste Safety Committee, hereinafter the Committee. John G. Kaufman, Esquire August 15, 1986 Page 4 The Ethics Act would not affect his ability to appear before agencies or entities other than with respect to the Bureau, the Office and the Committee. Likewise, there is no general limitation on the type of employment in which he may engage, following his departure from the Department. 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 including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, 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 he has been associated, that is the Bureau, the Office and the Committee including, but not limited to, negotiations or renegotiations on contracts with the Bureau, the Office and the Committee; 2. Attempt's to influence the Bureau, the Office and the Committee; 3. Participating in any matters before the Bureau, the Office or the Committee over which he had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or employer before the Bureau, the Office and the Committee 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 his name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by John G. Kaufman, Esquire August 15, 1986 Page 5 the Bureau, the Office and the Committee, constitutes an attempt to influence the former governmental body. See, Kilareski, 80 -054. Therefore, within the first year after Mr. Stephens leaves the Department, he should not engage in the type of activity outlined above. He may, assist in the preparation of any documents presented to the Bureau, the Office or the Committee so long as he is not identified as the preparer. He may also counsel any person regarding that person's appearance before the Bureau, the Office or the Committee. Once again, however, his activity in this respect should not be revealed to the Bureau, the Office or the Committee. Of course, any ban under the Ethics Act would not prohibit or preclude him from making general informational inquiries of the Bureau, the Office or the Committee 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, the Office or the Committee his representation of, or work for his new employer. Finally, the Commission has concluded that if he is administering an existing contract as opposed to negotiating or renegotiating a contract, his activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. In relation to the above provision, the Commission has held in the past that former public employees could administer, an already existing contract without violating the provisions of the State Ethics Act. Such administration of contracts could include incidental contacts with his former co- workers or other persons within his former governmental body. The Commission determined that such contact is not totally prohibited. However, the Commission determined that such contacts should be limited to the administration of an ongoing contract and should not include the negotiation, resolution, of any changes to ongoing contracts, or any other non - routine matter that would somehow result in his influencing a decision to be reached by his former governmental body. See, Beaser, 81 -538. As a result of the above Commission decisions, and as applied to the instant situation, Mr. Stephens could within the purview of the State Act provide to employees or representatives of the Bureau or the Office, technical data and information as requested by the Bureau or the Office in order to inspect the landfill facilities, and the currently ongoing installation project. Mr. Stephens may not otherwise participate in any attempt to obtain a DER permit. Such contacts by Mr. Stephens, with his former governmental body, must be confined to ministerial matters of a routine nature. Mr. Stephens may not participate in matters that relate to the resolution of problems that develop after a DER inspection, or that develop as a result of Empire's failure to comply with appropriate DER standards. Mr. Stephens may not participate in the negotiation or resolution of such matters, or Empires securing a permit, such would be attempts to influence his former governmental body within the purview of the State Ethics Act. In this John G. Kaufman, Esquire August 15, 1986 Page 6 respect, Mr. Stephens is cautioned that the nature of his contacts with his former governmental body may at times require the further advice of this Commission. Contacts that go beyond the provision to the Bureau or the Office of technical data, information, or other ministerial materials or documents, and appear to be attempts to influence the Bureau or the Office to Act favorably in relation to the landfill operations, could occasion a violation of the State Ethics Act. 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 a Solid Waste Specialist, Mr. Stephens is are to be considered a "public employee" as defined in the Ethics Act. Upon termination of his service with the Department of Environmental Resources, he would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, his conduct should conform to the requirements of the Ethics Act as outlined above. His governmental body for the purpose of the one year representation restriction is the Bureau of Solid Waste Management, The Wilkes -Barre Regional Offices and the Solid Waste Safety Committee. Further, you are reminded that the Ethics Act also requires Mr. Stephens to file a Statement of Financial Interests for. the year following his 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 all the material facts and committed the acts complained of in reliance c'n 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.