HomeMy WebLinkAbout87-520 GlennJim Glenn
Department of Environmental Resources
Post Office Box 2063
Harrisburg, Pennsylvania 17120
Dear Mr. Glenn:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
March 13, 1987
ADVICE OF COUNSEL
87 -520
Re: Former Public Employee; Section 3(e), Section Chief, Department of
Environmental Resources
This responds to your letter of February 10, 1987, 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: Your currently serve as the Chief of the Recycling and Energy Recovery
Section in the Department of Environmental Resources, Division of Resource
Recovery and Planning. You advised that effective March 11, 1987, you will
terminate your employment with the Department of Environmental Resources and
initiate employment as a Waste Mangement Consultant. You have requested
advice of the State Ethics Commission regarding what, if any, prohibitions
would be placed upon you in your private endeavors upon your termination of
employment with the Department of Environmental Resources. Specifically, you
have requested advice as to whether you may interact with certain portions of
the Department of Environmental Resources, other state agencies and whether
you may participate in annual conferences that are funded by the Department of
Environmental Resources.
In your current position with the Department of Environmental Resources,
you were involved in planning, developing and implementing goals and
objectives for the Resource Recovery Program in the Commonwealth of
Pennsylvania. You coordinate the development of resource recovery related
segments of the State Solid Waste Management Plan. You supervise and evaluate
resource recovery activities undertaken by the Bureau of Waste Mangement
Personnel. You manage the bureau's resource recovery technical assistance and
technical transfer program and you are responsible for developing the criteria
for reviewing and improving certain grant applications. You also make final
recommendations to the bureau for funding approval. You direct resource
Jim Glenn
March 13, 1987
Page 2
recovery studies such as market technology assessments, common waste
characterization, and instutional factors in resource recovery. You interact
with other state agencies such as the Department of General Services, the
Governor's Energy Council and the Pennsylvania Engery Development Agency as
they relate to the Department of Environmental Resources Recovery Program. We
have reviewed your job description and classification specification as part of
this advice and have incorporated those documents herein by reference.
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 for the Department of Environmental Resources Division
of Resource Recovery and Planning in the Bureau of Waste Management, 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 Slack, 86 -607.
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 Pennsylvania
Department of Environmental Resources, hereinafter 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 way 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 Ewinn, 79 -010. See also Kury vs. Commonwealth of Pennsylvania,
State Ethics Commission, 435 A.2d 940 (1981).
Jim Glenn
March 13, 1987
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 in the Bureau of Waste
Mangement. Thus, the "governmental body" with which you have been
"associated" upon the termination of your employment would be the Bureau of
Waste Management and all divisions and sections therein. 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 the Bureau. 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 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;
Jim Glenn
March 13, 1987
Page 4
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
Bureau so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Bureau. Once
again, however, your activity in this respect should not be revealed to the
the Bureau. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Bureau 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 the Bureau 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 should note that the Ethics Act does not appear to
prohibit your participation in a conference even though such would be funded
by the Department of Environmental Resources. This is so in light of the fact
that you would not appear to representing any person before the Bureau if you
were to participate in such a conference.
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 Section Chief in the Bureau of Waste 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 Bureau of Waste Management.
Jim Glenn
March 13, 1987
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.
John J
Actin
cerel
ntino
eneral Counsel