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HomeMy WebLinkAbout87-627 KennedySTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 November 16, 1987 ADVICE OF COUNSEL Mr. John J. Kennedy 87 -627 5 Wampenog Circle Royersford, PA 19468 Re: Former Public Employee; Section 3(e), Grant Section Chief, Water Quality Management, DER Dear Mr. Kennedy: This responds to your letter of September 29, 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 (DER). Facts: You state that you have worked for DER in the Norristown Regional Office for the past 14 years and that on October 19, 1987, you will be accepting a new position as a project engineer with Gilmore and Associates of New Britain, Pennsylvania. You further state that after your retirement, you will be involved with municipal and private water and sewer projects in Bucks County and the surrounding areas as part of your new employment. Your job description /specification which is incorporated herein by reference provides that you have the responsibility as a Regional Office Grant Section Chief in the Water Quality Management Bureau of DER to supervise the engineering and administrative personnel and to manage the complex technical, engineering and administrative functions associated with the construction grants program under the Federal Clean Water Act. As part of your duties, you are also required to keep current as to all state and federal changes in program policies, rules, regulations and legislation affecting the grants program. It is also your responsibility to determine that the engineering and administrative work that is done conforms to program requirements and accepted Mr. John J. Kenndy November 16, 1987 Page 2 engineering practice. As part of your duties, you provide guidance to the staff on a regular basis and also review individual projects. You also approve grant documents for certification to EPA and recommend action on Part II construction permits relative to the approval of bid plans and specifications for grant projects. You also provide the proper coordination with the Central Office EPA, grantees and others on the grants program. You also provide the proper coordination with the regional planning section on project priority ratings, Facility Planning scope and recommendations, discharge effluent limitations and Act 537 and Section 208 planning requirements. Lastly, you provide the proper coordination with the regional Permits Section regarding Part I - NPDES permit processing for grant projects. As part of your duties, you also provide input to the Central Office on program development and maintenance and also offer assistance to the Central Office in identifying technical and administrative training needs. You also provide priority list update information relative to the state's annual construction grant appropriation. Further, your duties also consist of providing input to the Regional Water Quality Management regarding the section's annual workload projections for incorporation into the Region's Annual Program Plan and updated information on a quarterly basis. Lastly, you attend regional staff meetings and state -wide grant programs staff meetings and such other duties as are required in your position. You conclude by requesting a ruling regarding what limitations would be imposed upon your activities for the first year after you leave DER. Discussion: As a Grants Section Chief 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 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 Hinkle, 86 -603. 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. Mr. John J. Kenndy November 16, 1987 Page 3 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). 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 Norristown Regional Office, hereinafter 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 DER, 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 DER. It must be 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: 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. Mr. John J. Kenndy November 16, 1987 Page 4 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 Office; 3. Participating in any matters before the Office over which you had supervision, direct involvement, or responsibility while employed by DER; 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 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 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 he done in an effort to indirectly influence these entities or to otherwise make known to 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. Lastly, it should be noted that the Ethics Commission has only addressed your question relative to the Ethics Act; it has not considered the applicability of any other statute, code, ordinance, regulation or any other code of conduct other than the Ethics Act. Mr. John J. Kenndy November 16, 1987 Page 5 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 Grants Section Chief, you are a "public employee" as defined in the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Upon termination of your service with DER, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. 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