HomeMy WebLinkAbout87-550 EganSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 4, 1987
ADVICE OF COUNSEL
Mr. John P. Egan
Roy F. Weston, Inc. 87 -550
Weston Way
West Chester, PA 19380
Re: Former Public Employee; Section 3(e), Chief, Engineering Services
Section, Department of Environmental Resources
Dear Mr. Egan:
This responds to your letter of March 25, 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
Department of Environmental Resources.
Facts: On March 11, 1987, you terminated your employment with the
Pennsylvania Department of Environmental Resources where you served as the
chief of the engineering services section for the Bureau of Air Quality
Control, Norristown regional office. In that position you were responsible
for overseeing the air quality plan, approval /permiting program for a seven
county area in southeastern Pennsylvania.
You advise that you are currently employed as an associate project
engineer for the Roy F. Weston, Inc. company in West Chester, Pennsylvania.
You further advise that in this position you could potentially be involved in
consulting work relative to obtaining air quality and other permits for
clients located throughout Pennsylvania.
In your position with the Pennsylvania Department of Environmental
Resources, you were responsible for directing air pollution control activities
in an air basin, and supervising the planning and development of a phase of
the state -wide air pollution control program. Work encompassed the
supervision of the investigation of plant processes and air pollution
complaints and the determination of investigation of plant processes and air
pollution over control regions. An employee in this
position,
the authority to make final technical decisions and to recommend the
has
procedures for program implementation. You were also responsible for
determining and reporting violations of agency regulations and departmental
Mr. John P. Egan
May 4, 1987
Page 2
orders and review of engineering plans and proposals for air pollution control
equipment and air contamination sources. You were responsible for conducting
continuing evaluation studies in the region for which you were responsible.
In your position, you were generally assigned to the Norristown regional
office which encompassed seven counties in southeastern Pennsylvania.
You have requested the advice of the State Ethics Commission regarding
the application of the one year representation restriction to you as a former
employee of the Department of Environmental Resources. In this respect, you
have requested advice as to the nature and scope of this restriction.
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 chief of the engineering services section for the Bureau of Air
Quality Control, in the Department of Environmental Resources Norristown
office, 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
inspecting or other activities where the economic impact is e t hang,
minimus on the interests of another person. See Hinkle, 86 -063. than de
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 may be deemed to
Mr. John P. Egan
May 4, 1987
Page 3
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 Air
Quality Control'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 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 Office.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the the 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 Office), including, but not
limited to, negotiations or renegotiations on contracts with the the Office;
2. Attempts to influence the Office;
Mr. John P. Egan
May 4, 1987
Page 4
3. Participating in any matters before the Office over which
you
supervision, direct involvement, or responsibility while employed by the
Department;
4. Lobbying, that is representing the interests of any prso or
employer before the 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 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
Office so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Office. Once
again, however, your activity in this respect should not be revealed to the
the Office. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the 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 the 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 the chief of the engineering services section in the Bureau of
Air Quality Control, 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 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 of the
Department of Environmental Resources.
Mr. John P. Egan
May 4, 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 writing, to the Commission within 15 days of service hofpthis l must Adviceepursuantn
to 51 Pa. Code 2.12.
Sincere
john ,.'Co i no
Acting General Counsel