HomeMy WebLinkAbout86-607 SlackMr. Peter T. Slack, Chief
Engineering Section
Department of Environmental Resources
P.O. Box 2063
Harrisburg, PA 17120
Dear Mr. Slack:
Malting Address
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
September 29, 1986
ADVICE OF COUNSEL
86 -607
Re: Former Public Employee; Section 3(e), Section Chief, Department of
Environmental Resources
This respnnds to your letter of September 4, 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 Department
of Environmental Resources.
Facts: You have requested the advice of the State Ethics Commission in
relation to potential restrictions that are placed upon you should you
terminate your service with the Pennsylvania Department of Environmental
Resources, hereinafter the Department. You advise that you are currently
employed by the Department as the Chief of the Engineering Section within the
Division of Permits and Compliance. That division is administratively located
within the Department's Bureau of Water Quality Management. You have not
provided any information in relation to your proposed future employment plans
and, therefore, the advice contained herein will be general in nature. We
have reviewed your job description and position classification as part of your
request and have incorporated those documents herein by reference. Generally,
in your position with the Department, you are primarily responsible
for directing, developing, implementing and evaluating the statewide
permitting programs of the Rureau of Water Quality Management. Specifically,
your job functions included directing and supervising the staff of the
engineering section of the Permits and Compliance Division. You reviewed and
evaluated technical reports and recommendations prepared by subordinates and
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Peter T. Slack, Chief
September 29, 1986
Page 2
by professionals outside of the Department. You direct, develop and
coordinate the implementation of statewide technical and program guidance in
the areas of industrial wastewater management, non - municipal sewage
management, toxic substances control, and non -point source management. You
also directed, developed and coordinated the implementation of statewide
regulations, policies and procedures pertaining to the statewide dater quality
management permit program. You monitor and evaluate the effectiveness of that
program. You coordinated the development and implementation of that program
with other programs within the Bureau of Water Quality Management. You
reviewed and evaluated pertinent federal regulations and poli''cies and
coordinated the bureau's programs where necessary. You served as division
chief in that person's absence as the bureau's representative at various
state, interstate, and national committees and organizations dealing with
issues on the Bureau's Water Quality Management Permit Program. You have
requested the advice of the State Ethics Commission in relation to the
possibility that you may be terminating employment with the Department.
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 Section Chief in the Permit and Compliance Divisi
Water Quality Management for the Department, you are to be
"public employee" within the definition of that term as set
Ethics Act and the regulations of this Commission. 65 P.S.
§1.1. This conclusion is based upon your job description,
on an objective basis, indicates clearly that you have the
recommend official action of a non - ministerial nature with
contracting, procurement, planning, inspecting or other act
econorni c impact is greater than de minimus on the interests
See, Snelson, 84 -601; Quackenbush, 84 -541.
on of the Bureau of
considered a
forth in the
§402; 51 Pa. Code
which when reviewed
power to take or
respect to
ivities where the
of another person.
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.
Mr. Peter T. Slack, Chief
September 29, 1986
Page 3
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
deemed to have been associated during his tenure of public offic, 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 Management. Thus, the "governmental body" with which you have
been "associated" upon the termination of your employment would be the Bureau
of Water Quality Management and all divisions and sections therein.
Additionally, your governmental body would also be expanded to any particular
departmental committees, organizations or other state committees or
organizations on which you served and on which you had any influence,
responsibility or control. While you have not provided any specific
information in relation to this possibility, you are advised that the further
advice of the Commission may be necessary in the event that you so served on
such committees, organizations or governmental bodies. 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 Bureau.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Bureau. Likewise, there is no general
1 imitation 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:
Mr. Peter T. Slack, Chief
September 29, 1986
Page 4
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
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), including, but not
limited to, negotiations or renegotiations on contracts with the Bureau;
2. Attempts to influence the Bureau;
3. Participating in any matters before the Bureau 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 Bureau 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, 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
Department so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Department.
Once again, however, your activity in this respect should not be revealed to
the Department. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Department 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 Department your
c'epresentation 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.
Mr. Peter T. Slack, Chief
September 29, 1986
Page 5
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 Jorrner
governmental body, was influenced by such offer. See 65 P.S. §403(b).
Conclusion: As a Section Chief in the Permit and Compliance Division, the
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 Pennsylvania Department of Environmental Resources, you w ould 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 Water Quality
Management and any other Commonwealth or departmental boards, commissions, or
organizations on which you served as a result of your public employment.
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.
Since
bhn J.— Conti`no
General Counsel