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HomeMy WebLinkAbout86-603 HinkleMr. Richard L. Hinkle 105 East Sandy Ridge Road Doylestown, PA 18901 Dear Mr. Hinkle: Mauling Address State Ethics Commission 308 Finance Building P. 0. Box 1 1470 Harrisburg, Pa. 17108 -1470 September 19, 1986 ADVICE OF COUNSEL 86 -603 Re: Former Public Employee; Section 3(e), Sanitary Engineer Section Chief, Department of Environmental Resources This responds to your letter of August 28, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act present§ 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 as a Sanitary Engineer by the Department of Environmental Resources. In this capacity, you serve as Chief of the Permits Section in the Rureau of Water Quality Management in the Norristown Regional Office. You indicate that you will be resigning from the department in the. near future and that you have accepted a consulting position with an engineering firm. In your new position you will be primarily involved in planning, designing, constructing and operating water supply systems and sewage collection and treatment facilities for clients, including municipal agencies, land developers and other private parties. You have requested the advice of the State Ethics Commission regarding the restrictions that may he placed_upon you within the purview of the State Ethics Act. In relation to your request, we have reviewed your job description and classification specification and have included those doucments herein by reference. Generally, you were involved in supervising the Permits Section staff, which is comprised of sanitary engineers. This section is involved in the technical review of preliminary reports, permit applications, including State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Richard L. Hinkle September 19, 1986 Page 2 recommendations regarding permit issuance.and other matters as assigned. The Permits Section also under takes inspections of industrial processes, producing waste water and waste water treatment facility as part of permit application review; during and immediately following the construction thereof. You were responsible, in your position, for insuring that the Pennsylvania Clean Streams Law and Federal Clean Water Act are complied with by municipalities involved with sewage collection systems and by industries, municipalities and institutions involved with waste water treatment and discharge. You also perform various administrative functions as a section chief relating to the individuals assigned to your section. You are generally responsible to the Regional Water Quality Manager, who is also assigned to the Bureau's Norristown office. 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 a Sanitary Engineer IV assigned as a Section Chief for the Pennsylvania Department of Environmental Resources, hereinafter the Department, 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 minimus on the interests of another person. See, Snelson 84 -601. 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 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 Mr. Richard L. Hinkle September 19, 1986 Page 3 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 your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised within the Bureau of Water Quality Mangement's Regional Office. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Norristown Regional Office, hereinafter the Regional Office. Therefore, within the first year after you would leave the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Regional Office. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Regional Office. Likewise, there is no general limitation on the type of employment in which you may engage, following your 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 you have been associated, (that is the Regional Office), including, but not limited to, negotiations or renegotiations on contracts with the Regional Office; Mr. Richard L. Hinkle September 19, 1986 Page 4 2. Attempts to influence the Regional Office; 3. Participating in any matters before the Regional Office over which you 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 Regional 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 Regional Office, constitutes an attempt to influence your former governmental body. See, Kilareski, 80 -054. Therefore, within the first year after you leave the Department, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Regional Office so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Regional Office. Once again, however, your activity in this respect should not be revealed to the Regional Office. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Regional 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 Regional 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 a Chief of the Permits Section, Bureau of Water Quality Management, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the 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 Norristown Regional Office. Mr. Richard L. Hinkle September 19, 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 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. Si n . John J. ont Ge - al Counsel