HomeMy WebLinkAbout87-596 BaltaMr. Stephen R. Balta
3452 Thornwood Drive
Bethel Park, PA 15102
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
July 9, 1987
ADVICE OF COUNSEL
87 -596
Re: Former Public Employee; Section 3(e), Sanitarian Sewage Specialist
Dear Mr. Balta:
This responds to your letter of June 15, 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: You recently terminated your employment with the Department of
Environmental Resources, hereinafter the Department, where you served as a
sanitarian sewage specialist in the Borough of Water Quality Management,
Planning Section Division, in the Pittsburgh Regional Office, hereinafter the
Office. In that position, you performed supervisory, professional work in the
field of water quality management.
You now inquire as to what specific or general constraints would apply to
you following your departure from the Department. You have submitted a copy
of your job description which is incorporated herein by reference.
In your position with the Water Quality Management Bureau, hereinafter
the Bureau, you were responsible for supervising the employees in the
Pittsburgh regional office relative to the implementation and coordination of
activities to ensure compliance with the rules and regulations of the
Commonwealth Sewage Facilities Act and the Clean Streams Act. You coordinate
sewage facility activities so that the technical program requirements are met
and the actions taken are consistent. To accomplish the foregoing, you review
and approve official plans, major revisions to the plans, plan grant
applications, litigation requests involving the sewage program, preparation of
departmental orders and settlement negotiations. You also attend
administrative hearings, coordinate legal actions involving the sewage program
and if necessary, testify as an expert witness. As part of your duties you
are required to review and recommend changes to rules, regulations, policies,
Mr. Stephen R. Balta
July 9, 1987
Page 2
and procedures and further review proposed legislation for its impact on the
sewage facility program. You not only provide guidance to field personnel in
implementing the Sewage Facilities Act and the Clean Streams Law, but you also
provide advice to surveyors, engineers, architects, planning commissions,
field personnel, supervisors and governmental officials. Additionally, you
provide advice to homeowners, contractors, and the public generally regarding
the installation of on lot sewage systems. Information is also provided by
you to special interest groups, the Commonwealth, Municipal and Federal
Officials and the public. Considerable time is spent by you in dealing with
municipal officials, contractors, architects, surveyors, engineers, and
planning commissions to explain the departmental rules, regulations, policies
and procedures relative to the sewage program. Your duties include training
sewage enforcement officers and field personnel. Work is assigned by you in a
general format as to overall program goals and objectives and the employees
work is reviewed after completion through reports and conferences for
attainment of the goals and objectives. You directly supervise the
sanitarians at the Pittsburgh Regional Office and periodically review their
actions. You in turn receive general supervision from the Water Quality
Planning Chief. However, your work is generally self- assigned, generally, in
the form of ovreall goals and objectives. You have considerable freedom in
scheduling and completing assignments which is reviewed by your supervisor as
to technical accuracy and quality relative to program goals and policy.
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 sanitarian sewage specialist for 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.
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:
Mr. Stephen R. Balta
July 9, 1987
Page 3
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 the Department 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 Ewina, 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 the Office. Thus, the
"governmental body" with which you have been "associated" upon the termination
of your employment would be 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 Office. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from the Department. 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
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:
Mr. Stephen R. Balta
July 9, 1987
Page 4
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 Office;
2. Attempts to influence the Office;
3. Participating in any matters before the Office 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 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. (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 the
Office, is not prohibited as "representation." See Kotalik, 84 -007).
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
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 indirect
influence these entities or to otherwise make known to the Office your
representation of, or work for your new employer.
Mr. Stephen R. Balta
July 9, 1987
Page 5
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 sewage specialist, 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 Office.
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.
Sincerely,
Vincent J. Dopko
General Counsel