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HomeMy WebLinkAbout87-579 ParksSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 May 21, 1987 ADVICE OF COUNSEL Mr. George L. Parks 87 -579 24 Berbec Avenue Lebanon, PA 17042 Re: Former Public Employee; Section 3(e), Sanitarian Vector Specialist, Department of Environmental Resources Dear Mr. Parks: This responds to your letter of April 17, 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: You have contacted the State Ethics Commission regarding the application of the State Ethics Act to your position as a former employee of the Pennsylvania Department of Environmental Resources. Specifically, you have been requested by the borough of Myerstown, Pennsylvania to assist them in controlling a rodent and related sanitation problem. Your employment in this respect would be directly for the borough and you would not be involved in activities regarding the Pennsylvania Department of Environmental Resources. You have requested the advice of the State Ethics Commission regarding whether you may accept such employment from Myerstown Borough. In your position with the Pennsylvania Department of Environmental Resources you were directly responsible for initiating, implementing and guiding all vector control activities in the region. In this respect, you provided service to state park superintendents concerning insect and rodent problems, to sanitarian and other regional staff within the department concerning insect and rodent problems and to private citizens and municipal bodies as requested. You also were responsible for providing recommendations as to the types and formulations of pesticides for specific problem situations. You assisted municipal vector program directors in determining policies regarding vector control programs and reviewed such municipal programs as necessary. You were involved in inspecting certain grant work in process and reviewing and evaluating all programs in the region for which you were responsible. You performed a number of other duties regarding the implementation of the area assigned to your jurisdiction. We have reviewed your job description and have incorporated that document herein by reference. Mr. George L. Parks May 21, 1987 Page 2 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 sanitation vector specialist 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. 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 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 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 Harrisburg Region of the Department, hereinafter the Region. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Region. 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 Region. As such, it appears as though your employment with the Borough would not be prohibited under the State Ethics Act. Mr. George L. Parks May 21, 1987 Page 3 The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Region. 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 Region), including, but not limited to, negotiations or renegotiations on contracts with the Region; 2. Attempts to influence the Region; 3. Participating in any matters before the Region 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 Region 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 Region, 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. Mr. George L. Parks May 21, 1987 Page 4 You may, assist in the preparation of any documents presented to the Region so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Region. Once again, however, your activity in this respect should not be revealed to the Region. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Region 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 Region 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 sanitarian vector specialist, 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 Harrisburg Region. 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. Mr. George L. Parks May 21, 1987 Page 5 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. ntino Actin eneral Counsel