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HomeMy WebLinkAbout87-593 CapellaSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 July 2, 1987 ADVICE OF COUNSEL Mr. Dennis Capella 87 -593 109 Hilltop Drive Downingtown, PA 19335 Re: Former Public Employee; Section 3(e), Bureau Director of Water Quality Management 4 Dear Mr. Capella: This responds to your letter of June.11, 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 June 12, 1987 you terminated your employment with the Pennsylvania Deparment of Environmental Resources, hereinafter DER, where you served as the Director of the Bureau of Water Quality Management, hereinafter the Bureau, which position you held from May 1986 until termination. From December 1983 to May 1986 you served as the Executive Director of the Water Facilities Loan Board, hereinafter the Board. During your tenure with the Bureau, you also served during December of 1986 as a review panel member for request- for - proposals with the Board. You advise that you are currently employed by BCM Eastern, Inc. which submitted a proposal to the Board. BCM Eastern, Inc. is one of four companies with whom contracts are now being prepared with the Board. You request an opinion as to what restrictions may be imposed upon you within the first year after you leave employment with the DER. The job descriptions for both your positions as executive director of the Board and director of the Bureau are incorporated herein by reference. As executive director of the Board, you were responsible for directing the implementation and administration of the water facilities loan program. As part of your duties you were responsible for developing and recommending rules, regulations, policies and procedures to the board and implementing and interpreting those which were approved by the board. Further, you directed and coordinated the review of all loan applications from a technical, legal and financial viewpoint. The review, evaluation and synthesization of all Mr. Dennis Capella July 2, 1987 Page 2 technical, legal and financial recommendations were done by you so that recommendations could be developed to the board relative to the assignment of loan priority applications, loan approval or disapproval, and the recommendation of funding levels relative to each loan category. As part of your duties you had to establish and maintain contact with federal, state and local agencies and the interstate river basin commissions to ensure that the water facilities loans, that were approved by the boards, would be implemented. It was your responsibility to direct, coordinate and evaluate inspections conducted during and after construction of water facilities projects and also to review audit reports outlining the financial condition of various water facilities projects which were funded. You also had to monitor loans, payments, repayments and interests and. make reports outlining loan approvals, repayments and interest earned. It was also your responsibility to make recommendations to the board regarding loan defaulters or possible defaulters. You also acted as a liason to the DER staff and to the water facilities advisory committee by meeting with legislators, municipal officials, port authority personnel and the public. As part of your duties you were also a supervisor over an administrative and clerical staff. Your supervisory work entailed planning and organizing work, assigning work, determining work priorities followed by the assignment to the employees who would plan, schedule, prioritize and complete the assignment subject to review by you as to its completion and overall quality. As director of the Bureau, you were responsible for the planning, development, implementation, coordination, and evaluation of programs designed to abate and prevent pollution of surface waters together with ensuring that there would be adequate sewage facilities available in the Commonwealth. As part of your duties you would develop a statewide water quality management program to abate and prevent pollution of surface and ground waters and to ensure the availability of adequate sewage facilities. Specifically, your work requires the administration of a large public works grant program to assist in the financing, construction and operation of sewage treatment plants and the coordination of water quality management programs which have been delegated to the Commonwealth by the federal goverment. As part of your duties you also meet with federal, state, and local officials, company representatives, special interest- groups and the public to resolve controversial water quality management issues. You also testify during congressional and legislative hearings and represent the Bureau in dealings with the federal, state, interstate and international organizations and advisory committees. Work is assigned by you to staff in a format which outlines the broad program goals and objectives. The completed work is reviewed by the di rector of the office of Envi rormental Management. While serving as the director of the Bureau, you also simultaneously served in December 1986 as a review panel member for request- for - proposals with the Board, the function of which was to analyze the problems facing prospective small water systems applicants. As a review panel member, you and five (5) other members reviewed 45 applicantions for the consultation contracts to assist small water system applicants. A screening system was implemented wherein six (6) members would individually rate all of the 45 applicants. Mr. Dennis Capella July 2, 1987 Page 3 Subsequently, a joint meeting was held and a consensus rating was completed for each applicant on a high, medium or low basis. At that point in time, you completed your service as a review panel member and the remaining panel members who were also staff submitted the high level candidates to the secretary of DER for consideration. At that time, you stated that you had no discussions or contacts with BCM Eastern, Inc. relative to the possibility of employment with then. You further stated that you did not apply for employment with BCM Eastern, Inc. until April 1987 which was followed by their offer of employment to you on April 30, 1987. 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 orethe Governor's Code of Conduct. As a Bureau Director for DER, 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 recannend 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 mi nimus on the interests of another person. See Egan, 87 -550. 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 the "governmental body" with which you were associated while working with DER must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. 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). Mr. Dennis Capella July 2, 1987 Page 4 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 both the Bureau and the Board in light of your membership on the review panel. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be both the Board and the Bureau. Therefore, within the first year after you would leave DER, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a-vis both the Board and the Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau and the Board. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from DER. It is noted, 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 empl oye r. See Anderson, 83 -014; Zwi kl , 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 fol1owi ng activi ties: 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 both the Bureau and the Board), including, but not limited to, negotiations or renegotiations on contracts with the both the Bureau and the Board; 2. Attempts to influence both the Bureau and the Board; 3. Participating in any matters before both the Bureau and the Board over which you had supervision, direct involvement, or responsibility while employed by DER; Mr. Dennis Capella July 2, 1987 Page 5 4. Lobbying, that is representing the interests of any person or employer before both the Bureau and the Board 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 both the Bureau and the Board, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave DER, you should not engage in the type of activity outlined above. (The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by both the Bureau and the Board, is not prohibited as "representation." See Kotalik, 84 -007). You may, assist in preparation of any documents presented to both the Bureau and the Board so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before both the Bureau and the Board. Once again, however, your activity in this respect should not be revealed to the both the Bureau and the Board. Of course, ban under the Ethics Act would not prohibit or preclude you from making any general informational inquiries of both the Bureau and the Board to secure information which is available to the general public. See Cutt, of course, must not be done in an effort to indirectly influence these . This, entities or to otherwise make known to both the Bureau and the Board 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, it is noted 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 Bureau Director, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with DER, you would became 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 both the Bureau and the Board. Mr. Dennis Capella July 2, 1987 Page 6 Further, shoul d you termi nate your empl oyment or servi ce, as outl i ned above, you are rani nded that the Ethics Act also requires you to file a Statement of Financial Interests for the year followi ng your termi nation of servi ce. 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 Advi challenge same, you may request that the ful personal appearance before the Commi ssion wi Opinion from the Commission will be issued. writing, to the Commission within 15 days of to 51 Pa. Code 2.12. ce or if you have any reason to 1 Commi ssion review this Advi ce. A 11 be scheduled and a formal Any such appeal must be made, in service of this Advice pursuant Sincerely, Vincent J. Dopko General Counsel