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HomeMy WebLinkAbout87-549 DonatoniAnthony J. Donatoni c/o Michael M. Meloy, Esquire Wolf, Block, Schorr & Solis -Cohen Twelfth Floor Packard Building S.E. Corner 15th & Chestnut Streets Philadelphia, PA 19102 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 April 27, 1987 ADVICE OF COUNSEL 87 -549 Re: Federal Interpersonnel Act, Loaned Employee, Public Employee Dear Mr. Donatoni: This responds to the request for an advice of counsel presented on your behalf by Michael M. Meloy, Esquire, by way of letter dated April 6, 1987. Issue: Whether a federal employee on loan to the Commonwealth of Pennsylvania pursuant to the Federal Interpersonnel Act is to be considered a public employee within the purview of the State Ethics Act and subject to the provisions thereof. Facts: On January 5, 1987, you resigned from your position with the Department of Environmental Resources. You served the department as the Director of the Secretary's Office of Policy since October, 1984. Your employment in this position resulted from an assignment agreement that the United States Environmental Protection Agency had entered into with the Pennsylvania Department of Environmental Resources as provided for by the Intergovernmental Personnel Act of 1970. You have advised that pursuant to this agreement, DER had reimbursed the EPA for 70% of Donatoni's base salary, while EPA paid the remaining 30% of his salary plus fringe benefits. You have indicated that pursuant to the assignment agreement, Donatoni was on detail from a federal agency, and therefore, pursuant to the express terms of the Interpersonnel Act Donatoni remained a federal employee throughout his assignment with DER. You have thus, asserted your belief that Mr. Donatoni should not be considered a public employee within the purview of the State Ethics Act, and as such, the provisions of the State Ethics Act are not applicable to him. You have further argued that Donatoni also served merely as a state consultant and thus the Ethics Act would not be applicable to him. You have requested the advice of the State Ethics Commission in relation to whether the Ethics Act is applicable to Mr. Donatoni, and further, if so, what restrictions would apply as a result thereof. As part of our review of this question, we have included herein by reference the job description of Mr. Donatoni. Pursuant to this document Mr. Donatoni wx:s responsible for professional managerial work in policy and Anthony J. Donatoni April 27, 1987 Page 2 regulatory analysis for the Department of Environmental Resources. The employee in this class, directs DER programs involving development of departmental rules and regulations; coordination of the department's regulatory review activities; preparation of strategic plans to implement departmental goals; review an analysis of federal legislation; development of social and economic impact assessments in support of departmental policy; provision of staff support for development and implementation of environmental master plan; administration of the department's environmental review program, coordination of the department's budgetary and program policy intiative; preparation of policy analysis and special studies for executive review; coordination of planning policy within the department. In your position, you were also responsible for direct evaluation and supervision of a number of department employees. Discussion: The question that has been presented in the instant situation is not one of first impression. Specifically, in 1984 this Commission addressed the identical issue that has been presented herein. In Hunt, 84 -017 we were requested to rule upon the issue of whether a federal employee on loan to the Pennsylvania Department of Environmental Resources from the Environmental Protection Agency was to be considered a public employee within the purview of the State Ethics Act and thereby covered by certain provisions of the State Ethics Act including the one year representation restriction of section 3(e). 65 P.S. §403(e). As part of the Commission's interpretation in relation to that question, the Commission noted as follows: As we stated in our Opinion in Baxter, 81 -004, regarding the effect of the Governor Exchange Program we must answer this question in light of the contract in question, the manner in which the contract is to be performed, and the specific provisions and the purpose of the Ethics Act. Under the circumstances outlined above, where your day -to -day activities are subject to the direction and control of DER, we view this transfer of the right to control the manner and execution of the work to be done as a basic indicator that an employment relationship exists between the Commonwealth (DER) and you as the employee who is on "loan ". Because this work is also done using State equipment and supplies, during regular State hours, and on State property it becomes clear that even though you are on "loan" from EPA you are essentially an employee of DER. As we stated in Baxter, your status becomes that of a "public employee" where the contract under which your work during this "loan" period gives you the right to supervise other State employees to meet the goals established by your loan agreement. Here, we assume that becuase of your status Anthony J. Donatoni April 27, 1987 Page 3 and responsibilities with DER, you are responsible for taking or recommending official action of a non - ministerial nature with regard to one or more categories set forth in (1) -(5) of the definition of "public employee" cited above. Thus, generally, you should be considered a "public employee' cited above. Thus, generally, you should be considered a "public employee" within the coverage of the Ethics Act. Therefore, you must file a Statement of Financial Interests for each year you serve with DER or the Commonwealth, under this program, and for the year after you terminate such service. As can clearly be observed from the foregoing, this Commission has specifically ruled that an individual standing in a capacity similar to that of Mr. Donatoni, has been determined to be a public employee within the purview of the State Ethics Act. In this respect, it is interesting to note that in addition to the foregoing, a review of the interpersonnel agreement that you have provided, specifically indicates that applicable State conflicts of interests laws have been reviewed to assure that the employee is aware of these particular rules and regulations. In this respect, the agreement clearly contemplates the applicability of provisions of law, such as the State Ethics Act, to this long term relationship. Similarly, Item 13 of that same agreement, specifically indicates that rules, regulations and policies governing the operation and management of the agency to which the individual is assigned will be observed. While you have cited several court cases including Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186, (1981); and Rogers v. State Ethics Commission, 80 Pa. Commw. Ct. 43, 470 A.2d 1120, (1984), in support of your position those cased are clearly distinguishable from the instant situation. In both, Ballou and Rogers, the individual in question, merely served the governmenta body with which you were associated on a part -time basis. These individuals were associated with a private employer on a full -time basis and merely served on a retainer basis with the governmental body in question. Service was on an as need basis. In contrast to this situation, is the issue at hand, where Mr. Donatoni has served continously as a full -time top level employee of the Department of Environmental Resources since 1984. In light of this, it appears as though, these cases are clearly dissimilar to the case at hand, and as such, would not be applicable thereto. Based upon all of the foregoing, Mr. Donatoni is to be considered a public employee within the purview of the State Ethics Act and subject to the provisions thereof. Consequently, upon termination of this employment, you "former public employee" subject to Section 3(e) of the Ethics would 3(e) of the Ethics Act provides that: Anthony J. Donatoni April 27, 1987 Page 4 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 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 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 v. 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 Department. This is particulary so in light of the job description which clearly indicates that you were involved and responsible for department wide evaluation and development of policy, rules, and regulations. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Department. 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 Department. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the the Department. 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: Anthony J. Donatoni April 27, 1987 Page 5 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 Department), including, but not limited to, negotiations or renegotiations on contracts with the the Department; 2. Attempts to influence the Department; 3. Participating in any matters before the Department 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 Department 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 Department, 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 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 eneral Cutt, 79 -023. This, of course, must not be done in an effort to indi influence these entities or to otherwise make known to the the Department your representation of, or work for your new employer. Anthony J. Donatoni April 27, 1987 Page 6 Finally, the Commission existing contract as opposed activities would not be prohi Beaser, 81 -538. has concluded that if you are administering an to negotiating or renegotiating a contract, your bited by the Ethics Act. See Dalton, 80 -056 and In addition to the foregoing, the State Ethics Act also provides follows: Additionally, we note that Secti prohibit any public employee or publi employment if said position has been the official conduct of the employee governmental body, was influenced by The as Section 3. Restricted activities. (g) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. 403(g). Act defines executive -level State employee as follows: Section 2. Definitions. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a deicison. 65 P.S. 402. As the director of policy for the Department of Environmental Resources, you would fall within this provision of the Act, and as such, must comply with the provisions thereof. on 403(b) of the State Ethics Act would c official from accepting a position of offered based upon the understanding that or official, while working for his former such offer. See 65 P.S. §403(b). Anthony J. Donatoni April 27, 1987 Page 7 Conclusion: As a director of policy for the Pennsylvania Department of Environmental Resources, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department, 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 Pennsylvania Department of Environmental Resources. 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. o ontino Act g General Counsel